Eriksson and Eriksson

FAMILY COURT OF AUSTRALIA

ERIKSSON & ERIKSSON

[2008] FamCA 140

FAMILY LAW – CHILDREN - With whom a child lives
FAMILY LAW – COSTS - Child representative

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-277

APPLICANT:

Mr Eriksson

RESPONDENT:

Mrs Eriksson

INDEPENDENT CHILDREN’S LAWYER:

Turner Whelan

FILE NUMBER:

SYF

4382

2006

DATE DELIVERED:

7 March 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

22 March 2007, 19 April 2007, 16 & 23 August 2007, 25 October 2007 and 2 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould of Counsel

SOLICITOR FOR THE APPLICANT:

Meyer Pigdon Family Lawyers

RESPONDENT:	Respondent in person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Turner Whelan Solicitors

Orders

The Father and the Mother have equal shared parental responsibility for the child … born on … May 2005.
The Mother have responsibility for the day-to-day care, welfare and development of the child when he lives with the Mother.
The Father have responsibility for the day-to-day care, welfare and development of the child when he lives with the Father.
Subject to the terms of these orders the child live with the Mother.
The Mother not change the child’s place of residence except:
5.1To a place within 20 kilometres of her current residence; or
5.2To any place within the Sydney Metropolitan Area.
The child live with the Father as follows:
6.1For a period of three months from the date of these Orders:
6.1.1 from 9:00 am until 6:00 pm each Saturday;
6.1.2 if the Father is available on one afternoon per week with the Father collecting the child from the Mother’s residence at 4:00 pm and returning him to the Mother’s residence by 6:00 pm.
6.2Thereafter until the end of May 2009:
6.2.1 each alternate weekend from 9:00 am on Saturday until 4:00 pm on Sunday;
6.2.2 if the Father is available on one afternoon per week with the Father collecting the child from the Mother’s residence at 4:00 pm and returning him to the Mother’s residence by 6:00 pm.
6.3Thereafter until the child starts school, or 2011, whichever is the earlier date:
6.3.1 each alternate weekend from 6:00 pm on Friday until 4:00 pm on Sunday;
6.3.2 if the Father is available on one afternoon per week with the Father collecting the child from the Mother’s residence at 4:00 pm and returning him to the Mother’s residence by 6:00 pm.
6.4After the child turns four years of age in May 2009 for up to four periods of up to four days per year to be notified to the Mother by the Father in writing at least 28 days prior to the commencement of each period requested and to coincide with the Father’s time away from work;
6.5When the child commences school, or 2011, whichever is the earlier date, during the school term:
6.5.1 each alternate weekend from after school on Friday until before school on Monday, or before school on Tuesday if the Monday is a public holiday;
6.5.2 if the Father is available on one afternoon per week with the Father collecting the child from school and returning him to the Mother’s residence by 7:00 pm.
6.6When the child commences school, or in 2011, whichever is the earlier date, and when the child is in Kindergarten for one week in each of the school holidays between terms one and two, terms two and three, and terms three and four and for two periods of seven consecutive days in the Christmas school holidays by agreement, or failing agreement, to be the first half of the mid-year school holidays and the second and fourth week of the Christmas school holidays;
6.7Thereafter for one half of all school holidays by agreement and failing agreement to be the first half in each even numbered year and the second half in each odd numbered year;
6.8On Christmas Day in each odd numbered year by agreement, and failing agreement, from 5:00 pm on Christmas Eve to 2:00 pm on Christmas Day and in each even numbered year by agreement, or failing agreement, from 2:00 pm on Christmas Day to 10:00 am on Boxing Day;
6.9In the event that the child is not living with the Father on the child’s birthday in accordance with these orders then on the child’s birthday by agreement, and failing agreement, for three hours from 3:00 pm to 6:00 pm;
6.10In the event that the child is living with the Father on the child’s birthday in accordance with these orders then the child will live with the Mother on the child’s birthday by agreement, and failing agreement, for three hours from 3:00 pm to 6:00 pm;
6.11In the event that the child is not living with the Father on Father’s Day in accordance with these orders then on that day the child will live with the Father by agreement and failing agreement from 10:00 am to 5:00 pm;
6.12In the event that the child is not living with the Father on the Father’s birthday in accordance with these orders then on that day the child will live with the Father by agreement and failing agreement from 10:00 am to 5:00 pm if it is on a weekend or during school holidays or if it is a school day from after school to 7:00 pm.
6.13If the Father resides within 40 kilometres of the child’s home when the child commences school, or 2011 whichever is the earlier date, during the school term each alternate Wednesday from after school to before school on Thursday.
If Mother’s Day falls during the time the child is to live with the Father in accordance with these orders then such time be suspended from 10:00 am on Mother’s Day.
In the event that the child is not living with the Mother on the Mother’s birthday in accordance with these orders then on that day the child will live with the Mother by agreement and failing agreement from 10:00 am to 5:00 pm if it is on a weekend or during school holidays.
Subject to these orders the Father collect the child from the residence of the Mother at the commencement of the time the child is to live with the Father in accordance with these orders and return the child to the residence of the Mother or if required the school that the child attends at the conclusion of the time the child lives with the Father.
The Mother deliver the child to the residence of the Father at the commencement of the time the child is to live with the Father pursuant to orders 6.1.1, 6.2.1, 6.3.1, 6.4, 6.5.1, 6.6 and 6.7 and the Father deliver the child to the residence of the Mother or if required the school that the child attends at the conclusion of the time the child lives with the Father.
The Father not consume alcohol while the child is in his care or in the 24 hour period prior to the child coming into his care.
The child have liberal telephone communication with each parent while he is in the care of the other parent to be at least one call per day.
The parents provide each other with information regarding:
13.1Any medical emergency involving the child such as serious illness, accident or hospitalisation as soon as practicable.
13.2The general health of the child such as medical appointments, progress test results and details of any treatment.
13.3Occasions or events of special significance to the child or either party.
Each parent do all things necessary to authorise:
14.1the child’s school, pre-school or any child care facility to provide to the other party information or documents including photos, newsletters and notices upon request of the other party.
14.2Medical practitioners or specialists to provide to the other party information or documents including medical reports and details of any treatment upon request of the other party.
If the Father relocates to within 40 kilometres of the residence in which the child resides with the Mother she shall not change the child’s place of residence further than 40 kilometres from the Father’s residence.
The Mother notify the Father in writing of any change to her residential address and advise of this change and new contact details within seven days and prior to the Father’s next scheduled time with the child pursuant to these orders.
The Father notify the Mother in writing of any change to his residential address and advise of this change and new contact details within seven days and prior to the Father’s next scheduled time with the child pursuant to these orders.
The parents do all things to ensure that the child attend with an appropriate medical practitioner or authorised body for the purposes of obtaining all immunisations and inoculations which are recommended by the Health Department of New South Wales within 14 days of the child attaining the age for such immunisations or inoculations as recommended by the Department.
The Australian Federal Police place the name of the child on the Airport Watchlist in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until further order of the court.
Each parent be and are restrained from removing and/or causing the child to be allowed to be removed from the Commonwealth of Australia without the consent in writing of both parties or Court Order.
Neither parent say anything to or in the presence or hearing of the child which is in any way derogatory of the other parent.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Father pay within one month of the date of these orders one half of the costs of the Independent Children’s Lawyer.
The Father pay within one month of the date of these orders the outstanding costs of the court expert Dr M.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4382 of 2006

Mr Eriksson

Applicant

And

Mrs Eriksson

Respondent

REASONS FOR JUDGMENT

Before me for hearing are applications for final parenting orders. The proceedings were commenced by an application filed on behalf of the Father. The Respondent I shall refer to as the Mother.
The orders ultimately sought by the Father are set out in a minute filed on his behalf on 2 November 2007. He seeks the following:
1The father and the mother have equal shared parental responsibility for [the child].
2That [the child] live with the mother.
3That the mother not change [the child’s] place of residence except:
3.1    With the consent in writing of the father; or
3.2    To a place within 20 kilometres of her current residence but no further west than her current suburb except with the father’s consent; or
3.3    To any place within the Sydney Metropolitan Area.
4That [the chld] spend time with the father as follows:
4.1    If the father resides further than 40 kilometres from [the child’s] home:
4.1.1Until [the child] commences school, or 2011, whichever is the earlier date, during school term from 9am until 6pm Thursdays;
4.1.2For a period of 3 months from the date of these Orders from 9am until 6pm Saturday;
4.1.3Thereafter until aged 3, each weekend from 9am Saturday until 9am Sunday;
4.1.4A. Thereafter from age 3 to age 4 each alternate weekend from 9am
Saturday until 4pm Sunday;
B.Each other weekend from 9am until 6pm Sunday;
4.1.5Thereafter until [the child] starts school, or 2011, whichever is the earlier date, each alternate weekend from 6pm Friday until 4pm Sunday;
4.1.6After [the child] turns 4 for up to four periods of up to four days per year to be notified to the mother by the father in writing at least 28 days prior to coincide with the father’s time away from work;
4.1.7When [the child] commences school, or 2011, whichever is the earlier date, during school that each alternate weekend from Friday after school until Monday before school, or Tuesday before school if a public holiday on the Monday, (or if the father elects 6pm on Sunday);
4.1.8When [the child] commences school, or 2011 whichever is the earlier date, during school terms if the father is available on one afternoon/evening per week with the father collecting [the child] from school and returning him to the mother’s home by 7pm;
4.1.9When [the child] commences school, or in 2011 whichever is the earlier date, for one year during school holidays in kindergarten, for one week in each of the holidays between Terms 1 and 2, 2 and 3, and 3 and 4 and for two periods of seven consecutive days in the Christmas school holidays by agreement, or failing agreement, to be the first half of the mid-year school holidays and the second and fourth week of the Christmas school holidays;
4.1.10Thereafter for half of all school holidays by agreement and failing agreement to be the first half.
4.1.11At Christmas on Christmas Day in odd years by agreement, and failing agreement, from 5pm Christmas Eve to 2pm Christmas Day and in even years by agreement, or failing agreement, from 2pm Christmas Day to 10am Boxing Day;
4.1.12On [the child’s] birthday by agreement, and failing agreement, for four hours from 3pm to 7pm;
4.1.13On Father’s Day from 10am to 5pm;
4.1.14On the father’s birthday by agreement and failing agreement from 10am to 5pm.
4.2    If the father resides within 40kms of [the child’s] home:
4.2.1Until [the child] commences school, or 2011, whichever is the earlier date, during school term from 9am until 6pm Thursdays;
4.2.2For a period of 3 months from the date of these Orders from 9am until 6pm Saturday;
4.2.3Thereafter until aged 3, each weekend from 9am Saturday until 9am Sunday;
4.2.3.1Thereafter from aged 3 to aged 4 each alternate weekend from 9am Saturday until 4pm Sunday;
4.2.3.2Each other weekend from 9am until 6pm Sunday;
4.2.4Thereafter until [the child] starts school each alternate weekend from 6pm Friday until 4pm Sunday;
4.2.5After [the child] turns 4 for up to four periods of up to four days per year to be notified to the mother by the father in writing at least 28 days prior to coincide with the father’s time away from work;
4.2.6When [the child] commences school, or 2011 whichever is the earlier date, during school that each alternate weekend from Friday after school until Monday before school, or Tuesday before school if a public holiday on the Monday, (or if the father elects 6pm on Sunday);
4.2.7When the child commences school, or 2011 whichever is the earlier date, during school terms if the father is available on one afternoon/evening per week with the father collecting [the child] from school and returning him to the mother’s home by 7pm;
4.2.8When [the child] commences school, or 2011 whichever is the earlier date during school terms each Wednesday from after school to before school on Thursday.
4.2.9When [the child] commences school, or in 2011 whichever is the earlier date for one year during school holidays in kindergarten, for one week in each of the holidays between Terms 1 and 2, 2 and 3, and 3 and 4 and for two periods of seven consecutive days in the Christmas school holidays by agreement, or failing agreement, to be the first half of the mid-year school holidays and the second and fourth week of the Christmas school holidays;
4.2.10Thereafter for half of all school holidays by agreement and failing agreement to be the first half.
4.2.11At Christmas on Christmas Day in odd years by agreement, and failing agreement, from 5pm Christmas Eve to 2pm Christmas Day and in even years by agreement, or failing agreement, from 2pm Christmas Day to 10am Boxing Day;
4.2.12On [the child’s] birthday by agreement, and failing agreement, for four hours from 3pm to 7pm;
4.2.13On Father’s Day from 10am to 5pm;
4.2.14On the father’s birthday by agreement and failing agreement from 10am to 5pm.
5That [the child’s] time with the father be suspended from 10am on Mother’s Day.
6That if [the child] is with the father on his birthday [the child] spend time with the mother by agreement or failing agreement from 3pm to 7pm.
7That the father collect [the child] at the commencement of his time with [the child] and the mother collect [the child] at the conclusion of the father’s time.
8That the father not consume alcohol while [the child] is in his care or in the 12 hours prior to [the child] coming into his care.
9That [the child] have liberal telephone communication with each party while he is in the care of the other party to be at least one call per day.
10That the parties provide each other with information regarding:
10.2   Any medical emergency involving [the child] such as serious illness, accident or hospitalisation as soon as practicable.
10.3   The general health of [the child] such as medical appointments, progress test results and details of any treatment.
10.4   Occasions or events of special significance to [the child] or either party.
11That each party do all things necessary to authorise:
11.2   [The child’s] school, pre-school or any child care facility to provide to the other party information or documents including photos, newsletters and notices upon request of the other party.
11.3   Medical practitioners or specialists to provide to the other party information or documents including medical reports and details of any treatment upon request of the other party.
12If the father relocates within 40 kilometres of the residence in which [the child] resides with the mother she shall not change [the child’s] place of residence further than 40 kilometres from the father’s residence.
13That after [the child] turns 4 and until [the child] commences school the mother be permitted to suspend the father’s time, subject to Order 14, to allow her to spend four consecutive days with [the child] on up to four occasions each year with the mother to give the father 28 days written notice.
14That for the purpose of Order 13 the mother is restrained from electing any time that coincides with the father’s time with [the child] pursuant to Order 4.1.11, 4.1.12, 4.1.13, 4.14, 4.2.11, 4.2.12, 4.2.13 and 4.1.14.
15The mother to notify the father in writing of any change to [the child’s] residential address and shall advise of this change and new contact details within 7 days and prior to the father’s next scheduled time with [the child] pursuant to these orders.
16That the parties do all things to ensure that the child attend with an appropriate medical practitioner or authorised body for the purposes of obtaining all immunisations and inoculations which are recommenced by the Health Department of New South Wales within 14 days of [the child] attaining such age for such immunisations or inoculations as recommended by the Department.
17That the Australian Federal Police place the name of the child on the Airport Watchlist in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until further order of the court.
18That each party be and are restrained from removing and/or causing the child to be allowed to be removed from the Commonwealth of Australia without the consent in writing of both parties or Court Order.
An Independent Child Lawyer was appointed and on the final day of the hearing was represented by counsel. The orders sought by the Independent Child Lawyer were set out in a minute filed on 25 October 2007. However during the further hearing on 2 November 2007 I was informed by counsel for the Independent Child Lawyer that the minute of orders sought by the Father was accepted “in its entirety”. However the Mother did not agree with all of what was proposed and I will shortly set out the areas that remain for adjudication.

The Father was born in December 1966 and the Mother was born in September 1979. The parents commenced cohabitation in August or November 2003 and were married in January 2004. They separated in August-September 2006.
There is one child of the relationship, born in May 2005.
The Mother has a child from a previous relationship, B, who was born in April 1998.
I had the benefit of assistance from a Family Consultant. I also had the benefit of evidence from a Court Expert, Dr M who is a Child, Family and Adult Psychiatrist.
I had a Client Questionnaire from each parent (Exhibits A and B). I also had extensive affidavits sworn by the Father on 29 November 2006, 19 April 2007 and 24 and 28 September 2007. He also swore Financial Statements including one of 22 October 2007.
I had two affidavits sworn by the Father’s brother and affidavits of the father’s mother of 18 April 2007 and the father’s sister-in-law of 19 April 2007.
It was necessary to ascertain the areas of agreement and disagreement in relation to the orders I am being asked to make. Notwithstanding the history of the proceedings, and the time it has taken me to complete this judgment, which is of concern, the matters of disagreement have been considerably narrowed.
If the child resides further than 40 kilometres from the Father’s home the Father seeks that from aged three to four the child live with him each alternate weekend from 9:00 am on Saturday until 4:00 am on Sunday and each other weekend from 9:00 am until 6:00 pm on Sunday. The Mother seeks that the child spend time with the Father each alternate weekend from 9:00 am on Saturday until 6:00 am on Sunday or each weekend from 9:00 am on Saturday until 9:00 pm on Sunday.
If the child resides further than 40 kilometres from the Father’s home the Father seeks that when the child the child commences school, or 2011, whichever is the earlier date, during the school term the child live with him each alternate weekend from Friday after school until Monday before school, or Tuesday before school if the Monday is a public holiday or if the Father elects to 6:00 pm on Sunday. The Mother seeks that the period of the time the child has with the Father finish at 6:00 pm on the Sunday.
If the child resides within 40 kilometres from the Father’s home the Father seeks that until aged three the child live with him each weekend from 9:00 am on Saturday until 9:00 am on Sunday and thereafter from aged three to aged four each alternate weekend from 9:00 am on Saturday until 4:00 pm on Sunday and each other weekend from 9:00 am until 6:00 pm on Sunday. Again the Mother seeks that the child spend time with the Father each alternate weekend from 9:00 am on Saturday until 6:00 pm on Sunday or on each weekend from 9:00 am on Saturday until 9:00 pm on Sunday.
If the child resides within 40 kilometres from the Father’s home the Father seeks that when the child commences school, or 2011 whichever is the earlier date, during the school term that the child live with the Father each alternate weekend from Friday after school until Monday before school, or Tuesday before school if the Monday is a public holiday or if the Father elects at 6:00 pm on Sunday. The Mother seeks that the period of time the child has with the Father conclude at 6:00 pm on the Sunday.
If the child resides within 40 kilometres from the Father’s home the Father seeks that the child live with him when the child commences school, or 2011 whichever is the earlier date during school terms each Wednesday from after school to before school on Thursday. The Mother seeks that the child’s time with the Father be from after school to 7:00 pm.
The Father seeks that he collect the child at the commencement of his time with the child and the Mother collect the child at the conclusion of the Father’s time. The Mother proposes that if the parents continue to live more that 40 kilometres from each other the Father collect and return the child.
The Father seeks an order that he not consume alcohol while the child is in his care or in the 12 hours prior to the child coming into his care. The Mother seeks an order that the Father also attend on a weekly basis meetings of Alcoholics Anonymous.
The Father seeks an order that the parties do all things to ensure that the child attend with an appropriate medical practitioner or authorised body for the purposes of obtaining all immunisations and inoculations which are recommenced by the Health Department of New South Wales within 14 days of the child attaining the age for such immunisations or inoculations as recommended by the Department. The Mother opposes this order. The Mother obtained and completed a Department of Education, Conscientious Objection form for the child B in lieu of an immunisation certificate.
Although it was not specified in the minute I was told that the Father accepts that on his birthday the time he have be by agreement and failing agreement from 10:00 am to 5:00 pm or if it falls on a school day from 3:00 pm to 7:00 pm.

PARENTING-RELEVANT PRINCIPLES

For a discussion of the relevant provisions of Pt VII of the Family Law Act 1975 (Cth) see Goode and Goode (2006) FLC 93-277.
Section 61C(1) in Pt VII of the Family Law Act provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. In Goode and Goode (supra) the Full Court said that the parents may still be together or may be separated; there will be no court order and the parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3). There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
There are four stated objects in s 60B(1) to ensure that the best interests of children are met. These objects are, first, by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; second, by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; third by ensuring that children receive adequate and proper parenting to help them achieve their full potential; and fourth, by ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
There are five principles specified in s 60B(2) and they are, except when it is or would be contrary to the best interests of a child. First, that children have a right to know and be cared for by both parents; second, that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development; third, that parents jointly share duties and responsibilities concerning the care, welfare and development of their children; fourth, that parents should agree about the future parenting of their children; and fifth, that children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. Section 60B(3) deals with the right of an Aboriginal or Torres Strait Islander child to enjoy his or her Aboriginal or Torres Strait Islander culture.
For a discussion of s 60B prior to the significant amendments in July 2006 see B and B; Family Law Reform Act 1995 (1997) FLC 92-775. It has been suggested that the objects section now needs to be “given a central place in the interpretation of Part VII of the Act, and this includes how Court’s should reach conclusions about what would be in the best interests of the children who are the subject of decision making”: see Patrick Parkinson, “Decision Making about the Best Interests of the Child: The Impact of the Two Tiers” (2006) 20 AJFL 179; see also the Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006). Parkinson also suggests that the objects provide much more guidance than previously about how to decide disputes about post separation parenting arrangements.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.
Without repeating all of the 13 additional considerations they include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
For a helpful discussion about the interpretation of s 60CC and the relationship between the primary and additional considerations see Butterworths, Australian Family Law, vol 1 at [s 60CC.10] - [s 60CC.27]. Parkinson also comments (supra) at p 181 that consideration of the additional considerations will usually amplify the primary ones at another level of detail or put another way, a detailed examination of the additional considerations may assist in determining the significance of the primary considerations and the orders to make. I observe that in Mazorski v Albright (2007) 37 Fam LR 518 Brown J dealt with the additional considerations (at 543-550) before her Honour dealt with the primary considerations (at 550- 551).
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and specifies that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues unless a contrary order was made.
In Goode and Goode (supra) the Full Court said that there is a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
If I am satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility does apply but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B In determining the second matter, namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
In Goode and Goode (supra) the Full Court said that in the event that neither the concept of equal time nor substantial and significant time “delivers an outcome that promotes” the best interests of a child then “the issue is at large and to be determined in accordance with” the best interests of the child. The best interests of a child are determined by consideration of the matters in s 60B and s 60CC.
In conclusion, as Brown J said in Mazorski v Albright (supra) at 523 the Family Law Act places far more emphasis on the importance of substantial parental involvement in their children’s lives. Her Honour said, with which I agree, at 524:
[15]…There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumption’s application, require the court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim.
and at 526:
[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 one. Quantitive 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.

BACKGROUND

The Father moved to Australia in 1997. He became an Australian citizen in May 2002.
Both parents have been previously married. Dr M said that the Mother was married at the age of 17 years and that it was evident that there had been an introduction within the Muslim community. As to the Father Dr M reported that following the breakdown of his first marriage the Husband was upset and had drunk heavily for a period. The Father admitted himself into a 30 day rehabilitation programme and attended meetings of Alcoholics Anonymous.
In April 1998 the child B was born. Dr M said that despite marital difficulties the Mother considered the Father of the child B to be supportive and a positive part of the child’s life. Dr M said that the child B enjoyed seeing his Father and cousins on weekends.
In August or November 2003 the parties commenced a relationship.
In January 2004 the parties were married.
The Mother contended that during the honeymoon the Father was intoxicated and abusive. The Father contended that he drank alcohol but not to excess.
The Father’s brother gave some brief oral evidence and he admitted a conversation with the Father during which the Father admitted an occasion of excessive drinking that resulted in changes in the Father’s mood and temperament resulting in angry outbursts.
On 28 January 2004 the parties commenced residing in the Blue Mountains region in a home owned by the Father. At this time the Father was not in paid employment.
The Mother contended that in February 2004 the Father drank alcohol to the point of intoxication and was abusive at a wedding. The Father agreed he drank alcohol.
The Mother contended that in March 2004 the Father drank alcohol to excess and swore. The Father agreed he drank alcohol and got upset and a comment was made by a friend of the Mother.
The Mother contended that during the relationship the Father verbally abused her and was both verbally and physically intimidating. In my view, this was corroborated by evidence from LJ and MN. It is also corroborated by the evidence of the Father’s brother.
The Mother gave evidence about a telephone conversation she had in early 2004 with the Father’s brother about the Father’s behaviour. The Mother also contended that in March 2004 a conversation took place in the presence of the Father’s brother and sister-in-law about the Father’s drinking. This was admitted by the Father’s brother.
The Mother contended that on 20 June 2004 she returned home and found the Father on a couch with two empty bottles of wine, one empty bottle of champagne and one empty bottle of whisky. The Father contended that he drank one bottle of wine. In any event the Police attended the home. The Mother gave extensive evidence about what happened.

In July 2004 the Father attended Alcoholics Anonymous meetings with his father.
In 2004 the Mother attended approximately 10 therapy sessions.
In October - November 2004 the Father obtained paid employment with a bank.
The Mother contended that in December 2004 the parties had arguments about re-locating to Sydney. The Mother contended that the Father was abusive to her and during one argument when she wanted to leave the home he physically assaulted her.
The Mother contended that the parties eventually agreed to re-locate to Sydney.
The Mother contended that in March 2005 she and the Father had a conversation about his drinking.
In April-May 2005 the parties moved to a rented property in a southern Sydney suburb.
In May 2005 the child was born.
The Mother contended that in July 2005 the Father said “I will hunt you down and kill you if you take [the child] away from me”.
The Mother contended that in August 2005 the Father said to the child B “I will take [the child] away from you and you will never see your brother again”.
The Mother contended that in September 2005 the Father said to her “If you ever leave me I will hunt you down and kill you”.
In October-November 2005 the Father was in the United States for about four weeks.
In November 2005, while the Father was overseas, the Mother gained admission to a residential centre where she remained for five days.
The Mother gave evidence about an incident that occurred in about November 2005 after the Father returned to Australia.
In December 2005 the parties attended a joint session with a counsellor. The Mother believes that the Father may have attended three other sessions and then refused to attend any further sessions. The Mother also attended some private sessions.
MN contended that in January 2006 she saw the Father with a beer.
On 11 February 2006 an incident occurred and the police were involved. The Mother contended that the Father physically and verbally abused her. Apprehended Violence proceedings were commenced but discontinued in circumstances explained by the Mother. On 22 February 2006 the Mother signed a statement indicating that she had no fears of the Father.
In early 2006 the parties and the child travelled to Queensland to see the Mother’s father who was terminally ill. The Mother gave evidence about her subsequent attempts to travel back to Queensland with the child B to visit her father. The Mother’s father died in March 2006.
In March 2006 the Mother discovered that she was pregnant.
In April 2006 the Mother was diagnosed with viral meningitis and hospitalised.
The Mother gave evidence about various incidents that occurred during 2006.
In August 2006 the parties separated. The Father left the home in the south of Sydney.
The Mother contended that the Father came to the south Sydney home on average once per week to see the child and stayed for a couple of hours. The Mother contended that during this period the Father said that he wanted to reconcile.
In about August 2006 the Father told the Mother that he had secured a position in Thailand with his employer.
In August 2006, at the request of the Father, the parties and the children travelled to Thailand and spent time with the Father.
The Mother gave evidence about an incident that occurred while the parties were in Thailand.
In August 2006 the Father’s employment was terminated. The Mother and the children returned to Australia on a separate flight from the Father.
The Father was not in paid employment between August 2006 and February 2007.
After the parties returned to Australia the Father spent two days at the south Sydney home.
The Mother contended that in September 2006 the child was injured while in the Father’s care. A report was made to the police. On 21 September 2006 the police attended at the parties’ home.
In September 2006 the Mother established a relationship with Mr T. This became an intimate relationship. Mr T relocated from the Blue Mountains of New South Wales to Queensland. This relationship has now ended.
In November 2006 the Father completed the sale of the home in the Blue Mountains. He contended that after payment of the costs of sale and secured and unsecured debts of $62,225 he received $82,026. He gave evidence as how he applied the funds he received and it included a payment of $62,992 to the Australian Taxation Office.
From 12 November 2006 to 26 January 2007 the child did not spend time with the Father.
The Mother contended that on 16 November 2006 she received an eviction notice requiring her to vacate the south Sydney home by 30 November 2006. On 21 November 2006 the Mother’s solicitors wrote to the Father and requested that he pay the arrears of rent for the home. On 23 November 2006 the solicitors for the Father wrote to the solicitors for the Mother and advised that the Father would not pay the arrears.
The Mother and the children then went to Queensland. On 1 December 2006 the Father received a letter from the Mother’s solicitors indicating she and the child had moved to Queensland
The Father had contended that the last occasion on which he consumed alcohol was in December 2006. However on 2 November 2007 he gave evidence that the last occasion was in September 2007.
On 19 December 2006, on the application of the Father, the following orders were made by Judicial Registrar Loughnan:
PENDING FURTHER ORDER:
1.That the wife return the child […] to the Sydney metropolitan area to reside by 23 January 2007 and be restrained from removing him thereafter.
2.That orders be made in terms of paragraphs 18, 19 and 20 of the husband’s Application in a Case filed 15 December 2006 as set out hereunder:
18.           That the wife be restrained from removing the child, […], born […] May 2005 from the Commonwealth of Australia.
19.           That the Australian Federal Police place the name of the child on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.
20.           That each party be and are restrained from removing and/or causing the child to be allowed to be removed from the Commonwealth of Australia.”
3.That the mother deliver and collect the child to and from the father at [north-west Sydney]:
3.1           each Saturday from 2:00 pm to 6:00 pm to allow the father to send time with [the child], subject to such care periods being supervised by the father’s brother […] or his wife […].
3.2at such other and further times as agreed between the parties.
4.That an Independent Children's Lawyer be appointed. That each of the parties provide documents filed on their behalf to the Legal Aid Commission within 21 days.
5.That the parties agree that the sum of $10,000 be withdrawn from the funds held by Meyer Pigdon being the proceeds of the sale of the [Blue Mountains] property, and paid to the wife. The sum of $5,000 to be paid within 7 days to the wife’s lawyers and the balance forthwith upon the arrival of the wife and child in Sydney. The categorisation of such funds to be determined by the Trial judge in this matter.
6.That the parties attend a child and family consultant at a date to be determined by the Family Court Counselling Section.
7.That the matter be adjourned to the Judicial Registrar’s Call-over at 9:30 am on 13 February 2007.
8.That within 7 days of the adjourned date each party file and serve a Financial Statement.
The 23^rd of January 2007 was the date by which orders of 19 December 2006 required the child to be returned to the Sydney Metropolitan area.
The Father had supervised time with the child from 2:00 pm to 6:00 pm between 27 January 2007 and 20 February 2007.
On 20 February 2007 the following orders were made by Judicial Registrar Loughnan:
THE COURT FOUND
1.The mother has contravened orders made by this Court on 19 December 2006 without reasonable excuse.
IT IS ORDERED
2.The mother is to be released today forthwith upon her entering into a Bond with a monetary term of $5,000 (five thousand dollars) for a period of twelve months the conditions of which are that she be of good behaviour and comply with all orders of this Court.
3.The orders made by this Court on 19 December 2006 are varied to extend the time in which the mother is to cause the child […] to return to reside in the Sydney Metropolitan area to the date which is 21 days from today’s date.
4.Orders are made in terms of the document titled Minutes of Order marked Exhibit 1 and attached hereto.
IT IS NOTED
5.It is the Court’s intention that the alternate supervisor [the father’s mother] will be utilised when neither [the father’s brother] or [sister in law] are available.
IT IS FURTHER ORDERED
6.The mother is to pay the costs of the father of and incidental to these proceedings assessed in the sum of $2,465.00 and that payment is to be made on a date to be fixed by the Court.
7.Leave to the parties to restore by arrangement with Judicial Registrar Loughnan’s associate in relation to that issue.
8.Interest is not to run pursuant to the Rules of Court unless otherwise ordered by the Court.
9.The return date of 7 March 2007 is vacated.
10.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Mother returned to New South Wales and was able to secure rented accommodation in the Blue Mountain area. The Mother gave extensive evidence about her efforts to obtain suitable accommodation in compliance with the order requiring her to live in the Sydney Metropolitan area.
From 20 February 2007 to April 2007 the Father had time with the child on a supervised basis each Saturday from 2:00 pm to 6:00 pm, each Thursday from 10:00 am to 2:00 pm and additional periods on 23 February 2007 and 19 March 2007.
On 23 February 2007 a series of SMS messages were sent about a bruise the child had.
On 24 February 2007 at a changeover of the child between the parents the Father asked the Mother to sign a document. The Father took a photograph.
The Father contended that between March to May 2007 he earned $10,528.
On 12 March 2007 the Mother was told that she had suffered a miscarriage.
On 22 March 2007 I made various orders including that:
2.Order 1 made on 19 December 2006 be suspended pending further order on the basis that the Mother will continue to reside in the area in which currently resides and on the basis that Order 3 made on 19 December 2006 is complied with.
…
5.Dr [M], Child and Family Psychiatrist, be appointed as a Court Expert. For the purposes of preparing a report.
On 28 March 2007 an Interim Apprehended Violence Order was made for the protection of the Mother.
On 19 April 2007 I made the following orders:
1.Order pursuant to Division 15.5.2 of the Family Law Rules 2004 that Dr [M] be appointed as Single Expert Witness to enquire into and report upon matters relating to the welfare of the child […] born on […] May 2005, and that in preparing his/her report to the Court, Dr [M] be requested to consider the following matters:-
(a)     the effect on [the child] of any family violence to which he may have been exposed;
(b)    whether [the child] is at risk of being exposed to any physical or psychological harm from being subject to or exposed to abuse, neglect or family violence;
(c)    the relationship between [the child] with each of his parents and any other relevant person, including he child’s half-brother [B], born on […] April 1998, the Father’s extended family and the Mother’s fiancé;
(d)    the willingness and ability of each of [the child’s] parents to facilitate and encourage a close and continuing relationship between [the child] and the other parent and any other person who lives with the child;
(e)    the likely effect of any changes in [the child’s] circumstances, including the likely effect on [the child] of any separation from either of the parents or any other person with whom the child has been living, including changes as a result of the Mother’s proposal to reside in Queensland with [the child] and his half-brother, [B];
(f)     the capacity of each parent or any other person to provide for the needs of [the child], including emotional and intellectual needs;
(g)    the attitude to [the child] and to the responsibilities of parenthood, demonstrated by each of the child’s parents (or any other relevant person);
(h)    the effect on [the child] of spending equal time, or substantial and significant time, with each parent having regard to parent’s current and future capacity to:
(i)     implement such an arrangement;
(ii)    communicate with each other and resolve difficulties that might arise;
(i)     a psychiatric assessment of both parties particularly taking into account their allegations against the other in so far as they relate to parenting issues;
(k)    the parenting arrangements for [B] and the effect of the Mother living in Queensland on those parenting arrangements;
(l)     Whether the Mother’s refusal to immunise [the child] places [the child] at risk.
(m)   any other matter the Court Expert considers relevant.
2.The parties each pay one half of the fees of Dr [M], such payment to be made within 14 days of request by the Independent Children’s Lawyer, with the Father to pay one-half of Dr [M’s] fees charged at a private rate and the Mother to pay one-half of Dr [M’s] fees in accordance with the Legal Aid Commission’s Scale of Rates for experts in the event the Mother is in receipt of a grant of legal aid, however in the event the Mother is not in recept of a grant of legal aid then the Mother shall pay one-half of Dr [M’s] fees charged at the private rate.
3.The parties agree that any fees to be paid to Dr [M] by the Father and/or by the Mother in the event the Mother is not in receipt of a grant of legal aid, can be paid from the monies held in the Trust Account of Meyer Pigdon Solicitors.
4.Leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to Dr [M] and that the fees in respect of that photocopying be waived.
5.It be NOTED that it is subject to the Mother obtaining a grant of legal aid to assist with payment of her share of the costs of Dr [M].
6.It is NOTED that the Independent Children’s Lawyer is under no obligation to brief the Single Expert in terms of Order 1 above until there has been a compliance with Order 2.
7.The child […], born on […] May 2005 spend time with the applicant Father as follows:
(a)     Each Saturday from 10.00 am, to 5.00 pm, with the Mother to deliver the child to the Father and collect the child from the Father at the front of the premises at […] at the commencement and conclusion of each such period;
(b)    From 10.00 am, until 2.00 pm, each Thursday with the Mother to deliver the child to the Father and collect the child from the Father at the premises at [North-west Sydney] at the commencement and conclusion of each period.
8.The periods of time [the child] is to spend with his Father pursuant to Order 7 herein are to be supervised by the Father’s brother, […], or the Father’s sister-in-law […] or the Father’s mother […].
9.The Father is hereby restrained from consuming any alcohol or illegal drugs during any period of time [the child] is in the Father’s care and for a period of 24 hours prior to the commencement of any care period referred to in Order 7 herein.
10.Each of the parties shall notify the other as soon as practicable of any illness or injury suffered by [the child] during periods of time [the chld] is in each parties’ care respectively.
11.It be NOTED that the above arrangements are proposed until such time as Dr [M’s] Report is released, and subject to it being recommended by Dr [M] with a view to [the child] beginning to spend overnight periods with his Father thereafter.
12.Order 1 made on 19 December 2006 be suspended pending further order on the basis that the orders made this day are complied with.
13.Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Father contended that on 30 June 2007 his time with the child did not take place.
On 3 July 2007 the application for an Apprehended Violence Order was dismissed. The Mother did not attend the hearing.
The Father did not have time with the child on 5 July 2007.
The report of Dr M is dated 9 July 2007. On 18 July 2007 a copy of the report was released to the parties.
The Father contended that he did not have time with the child on 19, 21 and 26 July 2007 and 2 and 9 August 2007.
On 16 August 2007 by consent I made the following order:
1.By consent, Order 8 made on 19 April 2007 in relation to supervision of time spent by the child with the Father be discharged.
On 23 August 2007 I made the following orders:
1.Each of the Mother and Father file and serve by 4.00 pm on 21 September 2007 an updated financial statement and affidavit of financial circumstances and each party include in that affidavit evidence as to her future proposals with respect to the care of her son and in particular accommodation, employment and so on.
2.The Father file and serve by 4.00 pm on 28 September 2007 an affidavit in which he provides evidence as to his contentions in relation to the difficulties experienced in spending time with his son since 19 April 2007.
3.The Mother file and serve by 4.00 pm on 19 October 2007 an affidavit in reply to the said affidavit of the Father.
4.I NOTE that the Father will also provide evidence in relation to the disbursement of the proceeds of sale of [the Blue Mountains property].
On about 21 September 2007 I received from the Mother what she described as a financial statement and affidavit of financial circumstances. The Mother also set out her future proposals.
The Father swore an affidavit on 24 September 2007 and he said that he was employed on contract as a consultant and his income was $3,200 gross per week. He said that he was living with his mother who is a pensioner and he is not paying rent. He estimated that including tax, but excluding legal costs, he was paying weekly expenses of a total of $1,757.57. He said that when the proceedings are concluded he hopes to obtain his own rental accommodation and he estimated a weekly rental of $300.
The Father swore a Financial Statement on 22 October 2007 and he said that he was in receipt of a total weekly income of $3,000 per week being a salary. In fact he may have received $3,200 per week between August and December 2007. The Husband said that he has a total weekly expenditure of $1,983.56 which includes income tax of $1,030.
The hearing concluded on 2 November 2007.
The Mother is currently not in paid employment. The Mother swore a Financial Statement on 13 February 2007 and she disclosed a total weekly income of $301.70. The majority of her income is the sole parenting pension. The Mother now receives $430 per week and child support. The Mother’s financial circumstances are very limited. She has a debt of over $1,400 to Centrelink and a debt to her mother. The Mother pays rent of $340 per week. The Mother does get assistance from her mother.

The Mother is currently seeking to obtain paid employment with a real estate agency. In 2006 she undertook a course at TAFE to obtain a Grade IV Real Estate Certificate.
The Mother is still residing in rented accommodation and this will be the situation for some time in the future. The Mother is residing in the Blue Mountains and has signed a 12 month lease for her accomodation. The child B attends the local school and the fees are paid by the child’s father.
Ultimately the issues that I had to decide were considerably narrowed. The Mother had originally sought to relocate to Queensland however this proposal was abandoned some time ago. The Mother also sought that any time the Father spent with the child be supervised. However this was not supported by Dr M and was also abandoned by the Mother.
I am not going to repeat all of what Dr M said however he made detailed assessments of each of the parents. He also interviewed members of the maternal and paternal family.
As to the Mother Dr M said that she acknowledged a previous history of reactive depression. Further, that it was of concern that there was an inconsistency to the Mother’s description of events and that she had a tendency to magnify both positive and negative experiences.
Dr M also said that although the Mother was not diagnosed with any current psychiatric disorder, it was evident that she has substantive personality vulnerabilities. Dr M said that this was seen in her idealised and ambivalent relationships with significant figures in her life and dated back to her troubled experiences in her family of origin and later challenging life experience. He said it was of concern that the Mother had a tendency to externalise her difficulties, projecting them onto others. He did say however that it was the Mother’s view that she had ample reason for focussing on the Father’s limitations given his history of intermittent problems with anger and alcohol and that it was evident that the Mother had sought to resolve this issue by limiting the Father’s involvement in her own life and that of her children. However unfortunately for the Mother this had been an unsustainable position leaving the Mother distressed and frustrated with the legal system.
Dr M also said that the Mother had a past history of emotional vulnerability with periods of depression and decompensation. However he said it was evident that the Mother had benefited from psychotherapeutic intervention in the past and that it was most encouraging.
As to the Father, Dr M said that he:
·acknowledged that he could be “an intense person at times”;
·acknowledged a history of alcohol related problems;
·acknowledged that “on occasion during his relationship” with the Mother “he had drunk alcohol to excess”;
·acknowledged a history of depressed mood to stressful events such as the separation.
Dr M said that a significant family history of alcohol related problems was identified.
Dr M interviewed the Father’s brother and sister in law. Dr M recorded that the father’s brother acknowledged that the Father:
·experienced issues regarding the expression of anger over the years;
·had a short temper and would raise his voice if frustrated;
·had been distressed, frustrated and angry in the context of his relationship with the Mother;
·was a loving and caring Father in contrast to his relationship with his own father
The father’s sister in law acknowledged that the Mother had repeatedly expressed concern with respect to the Father’s behaviour under the influence of alcohol.
Dr M also said that the Father had an underlying emotional vulnerability. There was a history of reactive depressive symptoms associated with relationship difficulties and most significantly the loss of contact with his son. Dr M said that it was evident that at times the Father had problems associated with frustration, tolerance and impulse control, resulting in angry outbursts in the context of domestic disputes. Dr M said that although this did not extend to a significant psychiatric diagnosis the difficulties were amplified by the use of alcohol. Dr M said that the Father’s undertaking not to use alcohol while the child was in his care was seen to be an acknowledgment of this issue. Dr M said that it was evident in the past that the Father had taken assertive action to manage his vulnerability to alcohol related problems and that this was most encouraging.
As it transpired I do not need to make findings as to which parent’s version of many events that occurred is correct. There is probably some truth in both versions. For example, I am satisfied that there were occasions when the Father drank alcohol to excess and this led to conflict and that the Father did abuse the Mother. What I also know is that the relationship was tumultuous and there was a very high degree of conflict. It is instructive to read what Dr M said the child B reported about the arguments and aggression. The child B made very clear that he does not wish to see or have any involvement with the Father.
Dr M said that he did not find sufficient evidence to support the Mothers request for ongoing supervised contact for the child whilst with the Father. Dr M formed the opinion that the Father was more than capable of attending to the day to day care of the child although in a different manner from the Mother. Dr M said he did not form the view that the child was at risk of abuse or neglect in the Father’s care.
Dr M said that he would support the Father’s application for graded increase in the frequency and duration of unsupervised contact. Dr M said that he would support the Mother’s request for ongoing therapeutic intervention. Further that both parents were agreeable to attending a parenting after separation course arranged by Relationships Australia and to pursue further counselling focussing on appropriate communication in the context of co-parenting.

STATUTORY CONSIDERATIONS

I propose to first deal with each of the 13 additional considerations in s 60CC having regard to the objects and principles of Pt VII of the Family Law Act and then the two primary considerations in that section. I will then consider whether the presumption of equal shared parental responsibility does not apply having regard to the matters in s 61DA(2) or is rebutted having regard to s 61DA(4). If the presumption does apply and has not been rebutted then pursuant to s 65DAA I will consider whether each child is to spend equal time or substantial and significant time with each parent.
In final submissions by counsel for the Father and counsel for the Independent Child Lawyer no submissions were made in relation to any of the statutory considerations. This was because of the extent of the issues that remained for adjudication. However notwithstanding this approach I will briefly deal with the considerations.

Additional considerations

I am required to consider any views expressed by the child and any factors, such as the maturity or level of understanding of the child, that I think are relevant to the weight I should give to the views of the child. Section 60CD sets out how I may inform myself of views expressed by a child. However, I am not permitted to require a child to express views in relation to any matter: see s 60CE. Dr M said that the child was too young to be interviewed directly.
I am required to consider the nature of the relationship of the child with each of the parents and other persons including any grandparent or other relative of the child.
Dr M said that “Numerous positive highly attuned interactions were observed between the…” Mother and the children. He said that the child easily separated from the Mother. The Mother has always been and remains the primary carer of the child and I am satisfied that they have a very close relationship.
Dr M said that the Father’s lack of emotional attunement with the child was in stark contrast to the observed interactions between the child and the Mother. The Father was notably more active in the child’s play and once the child acclimatised to this, numerous positive and excited interactions were observed between the Father and the child. Dr M said that although the Father did not recognise that he was overstimulating the child with too many activities and too much information it was evident that the child delighted in contact with the Father and there was no evidence of fearfulness or distrust once the Father and the child had settled in to an extended experience of shared play. I am satisfied that the child has a close relationship with the Father. However it is different from the relationship of the Mother and the child.
Dr M said the child was seen to have a secure attachment to both his parents during the assessment process. Dr M did say that it was identified that the child had experienced a challenging beginning, with difficulties in settling. The child had been exposed to a highly unstable home environment, which had included parental separation, the mother’s relocation and persistent parental conflict. Dr M said the child was seen to be well supported by the extended family on both sides.
I am required to consider the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child. I am also required to consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her obligation to maintain the child. If the parents have separated then pursuant to s 60CC(4A) I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
I am satisfied that both parents are able to facilitate and encourage a close and continuing relationship between the child and the other parent.
I am required to consider the likely effect of any changes in the circumstances of the child including the likely effect on the child of any separation from either parent or any other child or other person including any grandparent or other relative of the child with whom the child has been living.
I am concerned about this matter and this is acknowledged by the staged periods of time the Father and the Independent Child Lawyer seek that the Father spend with the child.
I am required to consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the right of the child to maintain personal relations and direct contact with both parents on a regular basis.
There is an issue about travel which I will later deal with. The Mother resides and I anticipate that she will continue to reside in the Blue Mountains area of New South Wales given her financial circumstances. The Father resides in the Sydney Metropolitan area. The anticipated travelling time between the father and the mother is about one hour and 26 minutes being a travelling distance of approximately 109 kilometres.
I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of the child, including emotional and intellectual needs.
Dr M said it was his impression that the child’s developmental needs would generally be well attended to by the Mother. The Mother was observed to be highly loving and attentive. Dr M did however say that it was evident that the Mother had strong views with regard to the children’s upbringing, which included extended breast feeding, close sleeping and refusal of vaccinations and she was noted to be inflexible with regard to such issues. He said this had been a source frustration for the Father and had developed into open conflict on occasion.
Dr M said that the Father was a loving Father highly motivated towards maintaining a close bond with his son and he was seen to have a responsible attitude towards fatherhood.
Dr M said that both parents were identified to have support from their extended family. He said that both parents were identified to have survived challenging developmental experiences with their family of origin.
I am satisfied that the Mother has the capacity to provide for the needs of the child, including their emotional and intellectual needs.
I am satisfied that the Father has the capacity to provide for the needs of the child, including emotional and intellectual needs while the Father is not working and assuming there is no reoccurrence for the Father’s past behaviour..
I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of the child and of either of the parents and any other characteristics of the child that I think are relevant. There is nothing I need to say about this matter.
I am required to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, as provided by s 60CC(4) I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child. I also have to consider the extent to which each of the parents has facilitated, or failed to facilitate, the other parent participating in making decisions about major long term issues in relation to the child and spending time with the child and communicating with the child. I am also required to consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her obligation to maintain the child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
I am satisfied that both parents have an appropriate attitude to the child.
I am required to consider any family violence involving the child or a member of the child's family. I am also required to consider any family violence order that applies to the child or a member of the child's family if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 of the Family Law Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to each child or a member of the child's family. In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of the child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1). I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2).
I am satisfied that in the past there has been family violence perpetrated by the Father against the Mother. However I have already observed that Dr M formed the opinion that the Father was more than capable of attending to the day to day care of the child although in a different manner from the Mother and he did not form the view that the child was at risk of abuse or neglect in the Father’s care.
I am required to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. There may be further proceedings whatever order I make
I am required to consider any other fact or circumstance that I think is relevant. There is nothing else at this stage.

Primary considerations

I am required to consider the benefits to the child of having a meaningful relationship with both of the parents. This is a significant matter. It is important for the child to have a meaningful relationship with both parents.
I am also of the view that there is no significant risk of abuse of the child provided the Father does not drink alcohol to excess.

CONCLUSION-PARENTING

The parents agree that I should make an order that they have equal shared responsibility for the child. However it is agreed that the child not spend equal time with each parent. Irrespective of this agreement I would not be satisfied that it is in the best interests of the child that there be an equal time regime.
On behalf of the Independent Children’s Lawyer it was submitted that in the result there should be what was described as a substantial and significant time regime which balances some of the risk factors and importantly some of the specific factors of the child namely where the parents reside and the relationship of the child with his sibling and also the relationship of the child sibling with the Mother. On behalf of the Independent Children’s Lawyer it was submitted that there should be more structure in the regime.
I am of the opinion, that in all the circumstances, it is in the best interests of the child that he ordinarily live with his primary carer namely the Mother and an important issue is the amount of time the child spends with the Father.
I am satisfied that it is in the best interests of the child that he does spend some time with the Father. The child has a close relationship with the Father and it is important that the child spend time with the Father. This is supported by the Mother.
As to the issue if the child resides further than 40 kilometres from the Father’s home namely that from aged three to four the child live with the Father each alternate weekend from 9:00 am on Saturday until 4:00 pm on Sunday and each other weekend from 9:00 am until 6:00 pm on Sunday it is submitted that this would enable the child to spend regular and frequent time with both parents on a weekly basis. The Mother seeks that the child spend time with the Father each alternate weekend from 9:00 am on Saturday until 6:00 pm on Sunday or each weekend from 9:00 am on Saturday until 9:00 pm on Sunday.
If the child resides within 40 kilometres from the Father’s home the Father seeks that until aged three the child live with him, each weekend from 9:00 am on Saturday until 9:00 am on Sunday and thereafter from aged three to aged four each alternate weekend from 9:00 am on Saturday until 4:00 pm on Sunday and each other weekend from 9:00 am until 6:00 pm on Sunday. Again the Mother seeks that the child spend time with the Father each alternate weekend from 9:00 am on Saturday until 6:00 pm on Sunday or on each weekend from 9:00 am on Saturday until 9:00 pm on Sunday.
No or no significant submissions were made either on behalf of the Father or by the Mother in relation to these issues. However counsel for the Independent Children’s Lawyer submitted that in relation to the issue as to the time the child is to spend with the Father on weekends between ages three and four the proposal should be that the child spend time with the Father at least twice a week and that it has the advantage of introducing overnight contact on one of the weekends. It was submitted that the fact that the other weekend does not include overnight contact gives the child the opportunity to spend time with the Mother and also his brother on the weekends and that it represents a balance between the recommendation of Dr M in terms of frequency and the need for the child to spend time with his sibling.

I do not agree. Given the Mother’s ambition to obtain employment and that the child B attends school I am of the view that the child should be able to spend a complete weekend with his Mother and brother.
If the child resides further than 40 kilometres from the Father’s home the Father seeks that when the child commences school, or 2011, whichever is the earlier date, during the school term the child live with him each alternate weekend from Friday after school until Monday before school, or Tuesday before school if the Monday is a public holiday or if the Father elects to 6:00 pm on Sunday. The Mother seeks that the period of time the child spends with the Father conclude at 6:00 pm on the Sunday.
If the child resides within 40 kilometres from the Father’s home the Father seeks that when the child commences school, or 2011 whichever is the earlier date, during the school term the child live with the Father each alternate weekend from Friday after school until Monday before school, or Tuesday before school if the Monday is a public holiday or if the Father elects at 6:00 pm on Sunday. The Mother seeks that the period finish at 6:00 pm on the Sunday.
On behalf of the Father it is submitted that his proposal enables him to spend extended time with the child and avoids face to face contact between the parents.
The Mother submitted that the overnight stays should be limited to two nights in each 14 day period being either two nights every alternate weekend or one night of each week. The Mother submitted that the reason she seeks the child be at home the night before is because he needs to attend school and is a purely practical one and that she has no difficulty about face to face contact with the Father. The Mother is concerned that the child is settled before he has to commence school the following morning.
In relation to the issue as to whether or not when the child commences school the time he spends with the Father should conclude on a Monday on behalf of the Independent Children’s Lawyer it was submitted that this proposal has certain advantages. It enables the Father to have some limited involvement with the child’s school. Importantly from the perspective of the child it enables the Father to attend at the school to see the child’s friends and other matters. Further it enables the child to spend additional time with the Father which includes what Counsel described as the “type of time” which the legislation contemplates namely being involved in the daily routine of the child and thus it meets the definition of substantial and significant time. It was submitted that it also minimises the potential that the child could be exposed to conflict between the parents.
I accept the Mother’s concerns however overall I prefer the reasons put in the submissions of counsel for the Independent Children’s Lawyer and propose to order that the period of time conclude on the Monday morning. It will also resolve an aspect of responsibility for transportation. However I am not prepared to make an order that the time for the return of the child to be at the discretion of the Father. It may be a matter the parties can agree upon but otherwise the Father has to make a commitment to what he seeks.
If the child resides within 40 kilometres from the Father’s home the Father seeks that the child also live with him when the child commences school, or 2011 whichever is the earlier date during school terms each Wednesday from after school to before school on Thursday. The Mother seeks that the child’s time with the Father be from after school to 7:00 pm. On behalf of the Independent Children’s Lawyer it was submitted that should the Father be living approximate to the home of the Mother it was appropriate that there be some midweek time and that again the Father should be involved in the day to day life of the child and there should be a minimisation of handovers. Again I accept the submissions of the Independent Children’s Lawyer.
The Father seeks that he collect the child at the commencement of his time with the child and the Mother collect the child at the conclusion of the Father’s time. The Mother proposes that if the parents continue to live more that 40 kilometres from each other the Father collect and return the child.
On behalf of the Father it is submitted that each party has a motor vehicle and that it would send what was described as a beneficial message to the child that each of the parents is participating in the facilitation of time the child is to spend with the Father.
On behalf of the Independent Children’s Lawyer it was submitted that there was uncontested evidence before me of the difficulties that travel has caused in this case. An order was made that the Mother was to undertake all of the travel but as it transpired she did none of it. The order sought by the Independent Children’s Lawyer is that the parties share the travel but that it be structured in such a way as to provide that the Father can collect the child at the commencement of the period of time he is to spend with the child and the Mother collect the child at the conclusion of the periods of time the child is to spend with the Father. It was submitted that this would mean that there would be no issue about the commencement of the time the child spends with the Father because the Father would be responsible for collecting the child and that it would provide the Mother with the motivation to do her share of the travel because otherwise she would be unable to ensure that the child is returned to her. It was submitted that as a way of avoiding contravention proceedings and thus avoiding further litigation. It was also submitted that it is “equitable as between the parents”. There is some merit in these submissions however in some respects the proposal is onerous. For example if the Mother had to collect the child on Monday morning before school the Mother would have to drive from the Blue Mountains to suburban Sydney and then back to the Blue Mountains to get the child to school on time.
I am of the view that the Mother should bear some responsibility for transportation of the child. However overall I am of the view that the Father should bear a greater responsibility. The Father is in a superior financial position to the Mother. The Mother also has to care for the child B.
The Father seeks an order that he not consume alcohol while the child is in his care or in the 12 hours prior to the child coming into his care. The Mother seeks an order that the Father also attend on a weekly basis meetings of Alcoholics Anonymous.
On behalf of the Father a number of submissions were made and it was put that if in the future there was evidence that the Father “had fallen off the wagon” the position may be different.
On behalf of the Independent Children’s Lawyer it was submitted that if the Father wished to attend meetings at Alcoholics Anonymous then this would be a benefit to him and the fact that he does not wish to attend such meetings suggests that his attendance may not be of much utility. It was submitted however that his answers to certain questions in respect of this issue suggest that not that alcohol is not a problem but rather he lacks the insight into the fact that it could become a problem for him in the future. It was submitted that it is a matter of concern and although the Independent Children’s Lawyer had no difficulties with the concept that the Father might attend Alcoholic Anonymous there is a question about its utility if the Father does not believe it would be of any benefit to him. I then put to Counsel in discussion that there may be a utility given the bona fide concern of the Mother and that it might assist in allaying any of her concerns and this was accepted and was described by Counsel as “an additional benefit”.
I am not going to require the Father to attend meetings of Alcoholics Anonymous. However I am going to make an order that he is not to drink alcohol within 24 hours of the time he is to spend with the child. This should severely limit his opportunity to drink alcohol. I am not prepared to take any risk, even remote, of the Father drinking alcohol to excess and there being a reoccurrence of his past behaviour.
The Father seeks an order that the parties do all things to ensure that the child attend with an appropriate medical practitioner or authorised body for the purposes of obtaining all immunisations and inoculations which are recommenced by the Health Department of New South Wales within 14 days of the child attaining such age for such immunisations or inoculations as recommended by the Department. The Mother opposes this order. The Mother has completed a Department of Education, Conscientious Objection form for the child for the child B.
On behalf of the Father it was submitted that the evidence in relation to the immunisation issue is very scant. Dr M gave evidence that the immunisation should be carried out. It was submitted that the Mother gave no evidence as to why it was in the best interests of the child for it not to be carried out apart from what she described as a conscientious objection. It was submitted that I should take judicial notice that the great majority of children but not all are immunised and that I would find that it was more likely that the child would benefit from such an order being made.
The Mother contends that she had received legal advice and did not believe that this issue could be resolved by me. She contends that she has “expert witnesses” that are willing to come to court if need be to testify. In discussion I asked the Mother to expand on her reasons for objecting to immunisation of the child and she stated that to keep it “completely simple” she did not see the health benefit in the long term immune structure of her child by immunising. She contended that she had strong medical research to ascertain although this was not the forum for that issue to be debated. I then sought to seek clarification and asked her whether or not it was based on her view of medical science or for example there was a religious objection or something of that type to the proposal and the Mother said that it is “purely based on medical science” and that there is “no emotiveness or religious reasons”.
On behalf of the Independent Children’s Lawyer it was submitted that the evidence of Dr M is that it would be in the interests of the child to be immunised and that the Mother’s resistance to such a proposal is based on her understanding of medical science. However her understanding does not concur with the only expert evidence I have in this case namely the opinion of Dr M. Counsel for the Independent Children’s Lawyer submitted that in the circumstances the Independent Children’s Lawyer is concerned about the lack of immunisation of the child and therefore supported the order. It was submitted that the only decision available to me on the evidence is that the child should be immunised. I agree and I propose to make an order.
Although it was not specified in the minute I was told that the Father accepts that on his birthday the time he have be by agreement and failing agreement from 10:00 am to 5:00 pm or if it falls on a school day from 3:00 pm to 7:00 pm.
I am not going to order the regime proposed by the Father and the Independent Children’s Lawyer. It is too complicated. Further the child will be aged three in May 2008. I had some difficulty understanding the differences in the regimes proposed depending on the distance between the residence of the Mother and that of the Father. I am also going to assume that the Mother will continue to live in the Blue Mountains area of New South Wales and the Father will continue to live in the Sydney Metropolitan area. I am also going to assume that both parents will be in paid employment.

COSTS

On behalf of the Independent Children’s Lawyer an oral application was made that the Father pay $4,984.10 being one half of the legal costs and disbursements of the Legal Aid Commission namely $9,968.20. The Mother is under no obligation to pay a costs order in respect of the legal costs of the Independent Children’s Lawyer because she had the costs waived.
The Independent Children’s Lawyer however pursued recovery of an amount from the Father. The costs importantly include the costs of the court expert whose evidence was very useful and of considerable assistance. I was told and accept that there are outstanding court fees in respect of the court expert particularly with respect to his attendance at Court on 25 October 2007. The amount outstanding to Dr M is $1,980.
The Mother however has not had her share of Dr M waived, however in submissions Counsel for the Independent Children’s Lawyer accepted that the Mother was in what was called a substantially weaker financial position than the Father.
So far as the Father is concerned he informed me that he is currently in receipt of an income of $3,000 per week and that he had in the order of approximately $10,000 in an account with the Commonwealth Bank. On behalf of the Independent Children’s Lawyer it was submitted that in those circumstances it was appropriate that an order be made that the Father pay the fees of Dr M.
On behalf of the Father it was submitted that it was difficult for him to resist an application that he pay one half of both the Independent Children’s Lawyer and Dr M. Counsel for the Father informed me that the amount in the account with the Commonwealth Bank “has gone” and further that the Father has been put to enormous expense in the proceedings as a result of the Mother going to Queensland and then the subsequent position taken by the Mother which has now changed in relation to the orders which will ultimately be made.
I have come to the conclusion that the Father should, having regard to his superior financial position, pay one half of the costs of the Independent Children’s Lawyer and also the outstanding fees of Dr M. Although the Mother does anticipate and hopefully by now may have obtained paid employment I accept that even when she does it is likely that she will be in a weaker financial position than the Father.

I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate:

Date: 7 March 2008

[2008] FamCA 140

7 March 2008

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