FERRIER & BLYTHE - [2010] FMCAfam 773

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FERRIER & BLYTHE

[2010] FMCAfam 773

FAMILY LAW – Parenting – five year old child – parents have vastly different lifestyles – husband seeking orders for equal time – wife seeking child continue to live with her and spend significant and substantial time with the husband – found in light of the parties’ different lifestyles and values and in light of the child’s developmental needs, equal time not in child’s best interests.

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

Applicant:

mr ferrier

Respondent:

ms blythe

File Number:

MLC 6021 of 2008

Judgment of:

Bender FM

Hearing dates:

21 & 22 July 2010

Date of Last Submission:

22 July 2010

Delivered at:

Melbourne

Delivered on:

27 September 2010

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Ms Carter

Solicitors for the Respondent:

Gillian Coote Family Law

ORDERS

The parties have equal shared parental responsibility for their daughter [X] born [in] 2004 (“[X]”).
[X] live with her mother.
[X] spend time and communicate with her father as follows:
During school term:
(a)in week one from after school Wednesday to the commencement of school Friday commencing 6 October 2010;
(b)in week two from after school Friday to 6.00 pm Sunday commencing 15 October 2010, with such time to be extended to the commencement of school Monday or before school Tuesday if Monday is a public holiday or curriculum day commencing from Term One in 2011;
School holidays:
(c)from 10.00 am on 28 September 2010 to 6.00pm on 1 October 2010;
(d)in the 2010/2011 long summer vacation for an initial period of four nights and two subsequent periods of five nights, at times agreed between the parties and failing agreement commencing on 27 December 2010, 7 January 2011 and 17 January 2011 respectively;
(e)commencing in the Term One holidays 2011, for half the school term holidays at times agreed between the parties and failing agreement from the conclusion of school on the last day of term until 12.00 noon on the second Saturday of the school term holidays;
(f)in the 2011/2012 long summer holidays on a week about basis, at times agreed and failing agreement, to commence on the Saturday of the first week of the long summer holidays and each alternate week thereafter;
(g)from the 2012/2013 long summer holidays and each long summer holiday period thereafter, for one half of the holidays at times agreed and failing agreement, for the first half; and
(h)at such other times as are agreed between the parties.
The time pursuant to orders 3(a) and 3(b) hereof be suspended during all school holiday periods and resume at the commencement of school term as if there had been no intervening holiday period.

Special Occasions:

Notwithstanding any other order herein, [X] shall spend time with her mother and father as follows:
(a)with her father on Father’s Day from 6.00 pm on the Saturday immediately preceding Father’s Day to 6.00 pm Father’s Day in each year if she is not otherwise in the father’s care on that weekend;
(b)with her mother on Mother’s Day from 6.00 pm on the Saturday immediately preceding Mother’s Day in each year if she is not otherwise in the mother’s care on that weekend and [X]’s time with her father on that weekend shall be suspended from 6.00 pm on the Saturday immediately preceding Mother’s Day;
(c)with her father from 5.00 pm Christmas Day to 5.00pm Boxing Day 2010 and each alternate year thereafter and from 5.00 pm Christmas Eve to 5.00 pm Christmas Day 2011 and each alternate year thereafter;
(d)with her mother from 5.00 pm Christmas Eve to 5.00 pm Christmas Day 2010 and each alternate year thereafter and from 5.00 pm Christmas Day to 5.00 pm Boxing Day 2011 and each alternate year thereafter;
(e)with her father on the father’s birthday and on [X]’s birthday from after school to 7.00 pm if the day falls on a school day and from 9.00 am to 1.00 pm if the day falls on a non-school day in the event [X] is not otherwise in the care of the father;
(f)with her mother on the mother’s birthday and on [X]’s birthday from after school until 7.00 pm if the day falls on a school day and from 9.00 am to 1.00 pm if the day falls on a non-school day in the event [X] is not otherwise in the care of the mother;
(g)with her mother from 6.00 pm on the Thursday immediately preceding Good Friday to 6.00 pm Easter Saturday in 2011 and each alternate year thereafter, and from 6.00 pm Easter Saturday to 6.00 pm Easter Monday in 2012 and each alternate year thereafter; and
(h)
with her father from 6.00 pm Easter Saturday to 6.00 pm Easter Monday in 2011 and each alternate year thereafter and from

6.00 pm on the Thursday immediately preceding Good Friday to 6.00 pm Easter Saturday in 2012 and each alternate year thereafter.

Telephone Communication:

The parents be permitted to telephone [X] when she is not in their care at such times as are reasonable having regard to [X]’s age and routine.

Provision of Information:

Both parents provide a mobile telephone number and a landline number, if any, to the other parent and advise the other parent of any change to same within twenty-four (24) hours of any change.
Both parents provide to the other parent their residential address and any other address that [X] will be staying at whilst in the care of that parent if they are to stay at that address for more than two (2) consecutive nights and advise the other parent of any change within twenty-four (24) hours.
The parents each inform the other forthwith of any significant illness or injury suffered by [X] when in their care, and advise the other of any medication she has taken whilst in that parent’s care and is required to continue to take after she leaves that parent’s care.
This order shall act as an authority from each parent for either parent to speak to any education or extra-curricular activity provider or health care provider associated with [X] and obtain any and all information relating to [X] and, where necessary, each parent will provide the other parent relevant details of the service provider including names, addresses and contact telephone numbers.

School:

Both parents respectively authorise and direct any school or other provider responsible for any extra-curricular activity that [X] may from time to time attend to provide to the other parent (at that parent’s cost):
(a)copies of all school reports, newsletters, photograph order forms and any other document associated with [X]’s schooling or extra-curricular activities; and
(b)any information that either party may from time to time seek in relation to [X]’s schooling or extra-curricular activities.
Each parent be at liberty to attend and to be involved in any and all school events and extra-curricular activities to which parents are usually invited.

Restraints:

Neither parent denigrate the other parent or that parent’s friends and/or family in the present or hearing of [X] and use their best endeavours to ensure that no other person does so.

Arrangements for collection and care:

In relation to all changeovers which do not occur at school, the mother shall deliver [X] to the father at the commencement of time and the father shall return [X] to the mother at the conclusion of time, unless otherwise agreed.

AND THE COURT NOTES THAT:

(A)The parties consented to these orders save for orders 2, 3(a), 3(b), 3(c), 3(d), 5(c) and 5(d).

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Melbourne

MLC 6021 of 2008

mr ferrier

Applicant

And

ms blythe

Respondent

REASONS FOR JUDGMENT

Introduction

This matter sees the ongoing litigation between the parties in relation to the living arrangements for their daughter [X] born [in] 2004 (“[X]”) that first commenced in 2006.
It has been and is the husband’s strongly held belief that [X] should spend equal time with both her parents as:
“equality is the founding principle of all values and what forms democracy.”
The husband’s view is that [X]’s current living arrangements are such that:
“this is not what [X] is learning now.”
The husband therefore seeks orders that [X] live with each of her parents on a week about basis.
The wife, whilst acknowledging that an equal time living arrangement for [X] may be something to be considered in the future, is of the view that at [X]’s young age and because of the disparity in the parties’ lifestyle and values, it would be in [X]’s best interests to live with her and spend time with the husband during school term in week one from after school Wednesday to before school Friday and in week two from after school Friday to 6.00 pm Sunday, to be extended to before school Monday from the commencement of Term One in 2011.
The parties were generally in agreement in relation to the time [X] spends with each of them on special occasions and school holidays, save for Christmas arrangements and when an equal sharing of the school holidays should commence.
The wife seeks orders that [X] spend from 6.00 pm on 24 December to 10.00 am on 26 December with her and from 10.00 am to 5.00 pm on 26 December with the husband each year. The husband seeks orders that [X] be able to experience Christmas Eve/Christmas morning with each of her parents in alternate years.
In relation to school holidays, the husband seeks orders that [X] spend half of all school holidays with each of the parties commencing from the September 2010 term school holidays. The wife seeks orders that in the Term Three 2010 school holidays, [X] spend from

9.00 am on 21 September 2010 to 6.00 pm on 24 September 2010 and from 9.00 am on 30 September 2010 to 4.00 pm on 3 October 2010 with her father. In the 2010/2011 long summer vacation, the wife seeks orders that [X] spend two blocks of five nights with her father and otherwise that [X] live with the wife. She then proposes that a sharing of term holidays commence from the Term One 2011 holidays, that in the 2011/2012 long summer vacation [X] live week about with each of her parents and that from 2012/2013 the long summer vacation be shared equally in single blocks.
The husband does not oppose the week about arrangements for the long summer vacation but says it should commence in 2010/2011.

Background

The husband is of Sri Lankan background. He was born [in] 1968 and is 42 years of age. He is the founder, manager and operator of [L], a not-for-profit organisation that runs [businesses omitted] in Melbourne. The husband is actively involved in community work and is currently working with [omitted] University. He visits schools for migrants as a motivational speaker and is often asked to speak [omitted]. His community work has been well recognised and the husband was awarded [a national community service award]. The husband shares his home with Ms S. The husband describes Ms S as his
“housemate”
but says they are
“not in a mutually recognised relationship”.
The wife was born in Australia [in] 1968 and is 41 years of age. She is employed as [occupation omitted]. She has re-partnered and lives with Mr K.
The parties met in January 1993 and married in Sri Lanka [in] 1993. They separated in or about early 2003, and according to the wife reconciled in April 2004. [X] was conceived whilst the parties were separated utilising the IVF program and was born [in] 2004. The wife’s evidence is the parties separated in September 2004. The husband’s evidence is they did not reconcile but remained in an amicable relationship up to and after [X]’s birth.
The parties were initially able to agree as to the arrangements for [X]’s care after her birth. It is common ground that the husband initially spent considerable time with [X], always in the wife’s home.
When the wife returned to work in November 2005, the husband cared for [X] three days per week at the wife’s home. It was the husband’s evidence that at that time the parties agreed to a shared care arrangement. The wife disputes such agreement was reached and that the care arrangements were reflective of childcare needs.
In May 2006 the parties argued. The wife left her home with [X] and was out of contact with the husband for 15 days. Thereafter the parties were unable to agree to arrangements for [X] and the husband commenced proceedings in the Family Court in June 2006 (“the initial proceedings”).
After a number of interim consent orders the initial proceedings were resolved by way of final consent orders on 1 December 2007. The orders provided that [X] live with the wife and spend time with the husband each Tuesday morning and from 8.00 am Thursday to 6.00 pm Friday as well as provision for special days.
During the initial proceedings a Watch List Order was made that prevented the parties from removing [X] from the Commonwealth of Australia. After the husband filed a further Application, consent orders were made on 3 July 2008 that discharged that order and [X]’s name was removed from the Airport Watch List.
Subsequent to the finalisation of the initial proceedings, the husband expressed a wish to increase the time [X] was in his care and to that end the parties attended mediation in September 2008. As a result of the mediation, it was agreed between the parties that [X] would spend two nights each week with the husband being Wednesday and Thursday. The husband would collect [X] from kindergarten on Wednesday and return her to the wife at 6.00 pm on Friday. Those arrangements continued through the remainder of 2008 and 2009.
The husband commenced the current proceedings in October 2009. He seeks orders for [X] to live week about with each of her parents. It was his evidence he did not pursue further mediation to attempt to resolve the issue with the wife as he was aware she opposed such a living arrangement for [X].

Evidence

The husband’s proposal

As set out earlier in this judgment, the husband is seeking orders that the parties retain equal shared parental responsibility for their daughter [X] and that she otherwise live with each of her parents on a week about basis.
Save for the arrangements for Christmas and the timing of holiday arrangements, the parties were able to reach agreement in relation to the arrangements for [X] on special occasions such as Mother’s Day, Father’s Day and birthdays.
In relation to Christmas, the husband is seeking orders whereby [X] alternates spending Christmas Eve/Christmas Day with each of her parents from year to year.
In relation to school holidays, the husband seeks orders that [X] immediately start sharing the term school holidays with each of her parents and that for the long summer vacation 2010/2011 and 2011/2012 she spend time week about with each of her parents and thereafter the long summer vacation be shared equally so that [X] has two three week blocks with each of her parents.
It was the husband’s evidence that whilst he and [X] have a close and loving relationship, this relationship has not been able to develop to its’ fullest potential because of the relatively limited time that she gets to spend with him. It was his evidence that now [X] is at school that time is even more limited under the current arrangements because most of her waking hours are spent at school and he only has the opportunity to pick her up from school, have a short play with her, give her a meal and bath and then she’s into bed early before she’s up and off to school the next morning.
Mr Ferrier resides in a two bedroom house in [suburb omitted] that is funded by the co-operative that runs the [L] [business]. This funding is in exchange for the work that he performs for the co-operative.
The husband shares this accommodation with Ms S and whilst it would appear that they have an intimate relationship, Mr Ferrier does not describe her as his partner. It was common ground that [X] has a good relationship with Ms S who is employed as a [occupation omitted].
The husband was questioned as to his work commitments and it was his evidence that they are very flexible and can be adjusted to work around his responsibilities to care for [X]. It was his evidence that his hands on involvement in the [L] [businesses] is not as great as it once was. He gave evidence that he was also involved in other activities and by way of example indicated that he was taking one hundred refugees to [W] for tree planting purposes, was [omitted] working with [omitted] University and other organisations and was involved in a lot of fundraising activities working with philanthropic organisations. The husband also indicated that he was often asked to speak at Youth Forums and as a motivational speaker on social issues.
He conceded that his commitment to all these activities is the equivalent of a full-time job.
The husband agreed that he and the wife do not share the same values or parenting styles. He expressed concerns about how much television [X] was allowed to watch when in the wife’s care and was concerned that the wife utilised after school care for [X] when her work commitments clashed with [X]’s care after school hours.
It was the husband’s evidence that he believes he and the wife are able to communicate effectively in relation to [X] and that each were respectful of the other in their respective values and beliefs.
The husband spoke passionately and eloquently about his strong commitment to those who are disadvantaged and to his belief that every member of society must be treated with dignity, respected for their differences and diversity and the importance of living a life absent of materialism and selfishness.
The husband spoke of his beliefs that [X] should be given an opportunity to be equally exposed to both her parents’ values and the benefits to her in being able to spend equal time with him to enable her to learn about her father, his values, his heritage and his way of life.
The husband passionately and genuinely believes that anything less than equal time for [X] with her parents is grossly unfair to him and to [X]. It is his view that anything less than equality is not in [X]’s best interests and sends her the wrong message as to his value in her life and life values generally.
It was apparent from the husband’s evidence and from his discussions with Dr R that whilst the initial arrangements for [X] had been resolved by consent, the outcome had, in his view, been very much guided by observations made from the Bench at that time that orders would not be made for an equal time arrangement, particularly in circumstances where at that time the husband was living in a tent at [E]. The husband described that experience as if he had:
“a cancer in his head.”
He felt that he was deemed to not be a proper human being and he felt that way as a result of not being able to have equal time with his daughter. He indicated that he still felt any decision that would not allow him equal time would impact him in a similar way and that it would be racist, culturally influenced and sexist in circumstances where he has all the requisite skills to look after [X]. Absent a decision in these terms the husband indicated that he would feel like someone who had been:
“consigned to the back of the bus.”

The wife’s proposal

It is the wife’s proposal that [X] continue to live with her and spend time with the husband from after school Wednesday to before school Friday in week one and from after school Friday to 6.00 pm Sunday in week two to be extended to before school Monday from Term One 2011.
As indicated earlier in this judgment, the parties had reached agreement in relation to arrangements for special days, save for Christmas and the timing of holiday arrangements. It is the wife’s proposal that [X] spend time with her father every Boxing Day and otherwise spend Christmas Eve and Christmas Day with her on the basis that the husband does not celebrate or recognise Christmas.

In relation to school holiday arrangements, it is the wife’s proposal that [X] spend time with the husband from Tuesday to Friday in the first week of the September 2010 holidays and from Thursday to Sunday in the second week of those holidays and that she spend two blocks of five days with the husband in the upcoming long summer vacation. Commencing in 2011, it is the wife’s proposal that there be an equal sharing of the term holidays, that in the 2011/2012 long summer vacation [X] live week about with each of her parents and thereafter that she spend half the long summer vacation in block periods with each of the husband and wife.
It was the wife’s evidence that whilst she believed that at some stage in the future an equal time arrangement may well be in [X]’s best interests, she was strongly of the view that at [X]’s young age and particularly as she is only in her first year of school that such an arrangement would not be in [X]’s best interests at this time. The wife was also concerned how a shared care arrangement would work at this time given the parties’ very different values and lifestyles.
The wife spoke positively of the routine that [X] currently finds herself in and says she is comfortable and well settled.
In relation to her work commitments, it was the wife’s evidence that she is employed as a [occupation omitted] and has a [employer] who is flexible around the hours that she works.
Currently the wife works from 8.30 am to 2.30 pm on Mondays and Fridays, from 8.30 am to 4.30 pm on Tuesdays and because [X] is with the husband the wife works late on Wednesdays and Thursdays.
When in the wife’s care, [X] goes to before school care at 7.30 am on a Monday morning. On Tuesdays [X] spends an hour in after school care before her mother picks her up.
The wife indicated that currently [X] has just started going to “circus school” on Saturday mornings, has puppy school on Sundays, goes to ballet on Mondays between 4.00 pm and 5.00 pm and has swimming between 5.00 pm and 5.30 pm on Tuesdays.
It was the wife’s evidence that the husband is fully appraised of [X]’s extra-curricular activities and has attended her ballet concerts.
It was the wife’s evidence that whilst historically there had been some issues in relation to communication between herself and the husband, she was of the view that generally they are able to talk about the things they need to in relation to [X] and are able to negotiate most issues.
The wife indicated that whilst the parties sometimes discussed matters face to face they don’t like to do it
“over [X]’s head”
so they usually arrange things by text message. It was the wife’s description that overall she thought their ability to communicate as parents was:
“ok.”
The wife spoke positively of [X]’s relationship with her father and also of [X]’s relationship with Ms S.
The wife agreed that she and the husband do have different life views and expectations, and that she did at times feel that the husband did not agree with her life choices.
She was however of the view that each were respectful of the other as individuals and as parents.

Dr R

Dr R is a Regulation 7 Family Consultant who prepared a Family Report in this matter dated 15 June 2010. Dr R also prepared an Addendum to her Report dated 28 June 2010 in which she clarified her recommendations. Dr R also provided oral evidence at the final hearing of this matter.
In paragraph 49 of her Report, Dr R made the following recommendation:
49.It is respectfully suggested it would be in the child’s best interest:
(a)    [X] lives with the mother
(b)That both parents have shared parental responsibility for the long term care, welfare and development of [X]
(c)     The father spends time with [X]:
(i)     Wednesday where [X] is collected from school at 3.30pm until Friday where [X] is delivered back to school in the morning
(ii)    Alternate weekends commencing at the conclusion of school on Friday at 3.30pm until the commencement of school on Monday morning at 9.00am
Whilst the writer does no doubt believe that Mr Ferrier will be unhappy with this recommendation, the reality is that it was based on the child’s best interests and not on either parent’s needs or wants.
(d)For the parents to engage in earnest in further mediation to enable them to consider and examine common grounds for a less conflictual and mutually critical view of each other
(e)For a communication book to be established and used as a communication tool between the parties, thereby serving as a valuable tool in educating each parent on the activities and events that have been both beneficial and or unhelpful in [X]’s life, and to aid in the minimization of conflict arising from potential confusion or uncertainty. The parents to undertake joint responsibility in ensuring the book be passed between both homes and be the only ones to make entries in the book.
In her Addendum dated 28 June 2010, Dr R clarified her recommendations contained in paragraph 49(c) of the Report of 15 June 2010 and indicated that her recommendations were as follows:
49.
(c)The father spends time with [X]:
Week One
(i)On Wednesday, where [X] is collected from school at 3.30 pm, until Friday where [X] is returned back to school by 9.00 am
Week Two
(ii) Alternate weekends commencing at the conclusion of school on Friday at 3.30pm until Sunday at 6.00pm.
Dr R described the wife in paragraph 15 of her Report as:
“an articulate and friendly woman who remained child focused throughout the interview.”
Whilst the wife indicated to Dr R that she thought the current arrangements were working well for [X], Dr R found that the wife was open to considering alternative arrangements and in particular took on board her suggestions that it would be in [X]’s best interests to be able to spend some leisure time with her father and not just time during the school week.
Dr R observed the relationship between [X] and her mother to be relaxed and comfortable and the wife’s parenting style to be relaxed and inclusive.
The wife confirmed to Dr R that she and the husband have vastly different lifestyles and values and expressed concern that this may at times be confusing for [X].
In relation to the husband, Dr R described him in paragraph 27 of her Report as:
“a friendly but very intense man.”
Dr R reported the husband vigorously asserted his proposal for a shared care arrangement and to be dismissive of any suggestions as to alternative arrangements.
In paragraph 30 of her Report, Dr R summarised what the husband thought were the advantages and disadvantages of his proposal for shared care in the following terms:
a) He felt it would give [X] a chance to familiarize herself with both of her parents as equal carer’s which is biologically and psychologically a given as it takes two parents to contribute to her existence, he added. As such, he believed there existed a lop-sided care arrangement and [X] had been deprived of familiarity with him.
b) Mr Ferrier feared [X] did not know specifically who he was, but was unable to describe what he wanted her to know about him other than stating [X] had spent much less time with him than she had with her mother over the past five years of her life she has a very lopsided view of what equality is and of the notion that she has two homes, when she talks about home she refers to mum’s place, I think it would be an advantage to her to know that there are two homes, there are two people caring for her equally.
c) Mr Ferrier felt a shared care arrangement would facilitate [X] learning about him and for this opportunity to be made to the biggest extent possible. He described time with [X] was based on exploring and being creative, and not watching television as he felt she did when she was with her mother. He hoped that would be the basis of their relationship and to watch that develop. When asked what specifically he wanted [X] to know about him, he stated that I am someone who has taken an unconventional path in society who has promoted the care of other people in extraordinary ways. Mr Ferrier wanted [X] to value caring for people who may not be as fortunate as other people.
d) Mr Ferrier felt an added advantage would be [X] was with her father; that he cares for her and spends time with her; he would provide for her needs and security; cook food that is nutritious and is concerned about her diet; and would ensure she is in a stimulating environment where she could draw and use play doh with him. He did not feel this was being provided when [X] was with her mother.
e) He felt [X] would experience a greater diversity of care from both parents, and acknowledged he and the mother have vastly different approaches to life and [X] should be given an opportunity to experience these differences. He believed the Court’s decisions in the past had led to [X] having a deprived childhood as he had not been given a shared care arrangement providing [X] with equal time with both parents. He angrily asserted he believed the court made the wrong decision and I want to take them to task on that and I will do that. However he conceded it was most likely the court at that time had based its decision on him living an unconventional lifestyle as he did no seek to obtain money for his business and had been living on the foreshore in a tent. I wanted to live a simple life and I wanted to see if I could live without money and I pitched a tent [at] [E] and I managed this for two years without having to use money. Mr Ferrier agreed [X] was a young infant at that time but nevertheless believed he should have been given a shared care arrangement for her care despite his living arrangements. Mr Ferrier reported it was this lifestyle that won me [a national community service award], so I think the court made a strong error of judgment and it impacted on an innocent 18 month old.
f) Mr Ferrier was critical of the mother’s use of the schools after care program and felt it was unnecessary. He reported his time at present was extremely flexible and he was available to care for [X]. He also expressed concern about the amount of time [X] was watching television at the mother’s home which to me is an indication the parent doesn’t have the energy and stamina to spend time with the child. However, he acknowledged he did not actually know the amount of time [X] was watching, but she had talked of watching a gardening and renovating show, and he had heard the television on in the morning when he collected [X]. I don’t watch television so I don’t know what is on, but I believe a child’s sense of stimulation needs to be derived from things that are more natural.
g) Mr Ferrier felt he would be able to impart some of his Singhalese culture that he had grown up with if he had more time with [X], and believed [X] would benefit from being bi lingual.
In paragraph 43 of her Report, Dr R describes the relationship between the parties as having been conflictual and tumultuous and that [X] had been exposed to that turmoil and uncertainty. Both parents reported [X] having some difficulties with separating from each of them and

Dr R was of the view that this related to [X]’s early experiences of separating from her parents when they were highly conflicted. Dr R noted however that [X] had no difficulty separating from her and that her school teacher similarly reported no issues with [X] in this regard. Dr R indicated this showed that [X] did not experience a systematic issue with separating but that it only related to her earlier experiences with her parents.
In paragraph 46 of her Report, Dr R made the following observation:
46.It should be noted that for a week about shared care arrangement to work, there generally needs to be a high level of commitment between the parents, and an alignment of parental values and approaches to facilitate a seamless transition between the homes, and as far as the writer can ascertain, the parties do nothing that approximates anything like this at the moment.
The husband took issue with Dr R’s assessment that he and the wife were in a conflicted relationship. It was his evidence that they were able to communicate civilly and work together in [X]’s interests. It was the husband’s evidence that their only area of disagreement was the amount of time [X] should spend with each of her parents.
Whilst conceding that there are differences between the lifestyles and values of each of the respective parties, it was the husband’s proposition that exposure to these differences was a positive for [X] rather than a negative in that she would be given the opportunity to learn that there are different ways for people to approach life and how they live it.
It was Dr R’s evidence that certainly an exposure to differences can be a very positive learning experience for a child but if there is a general lack of respect for the other parent and the child is aware of that lack of respect, those differences then can be very difficult for the child. It was Dr R’s evidence:
“children are very aware of how people feel about the differences that occur in the other house. Children start to edit after awhile, what the information they’ll give to one parent not the other, because they’re not sure about how mum or dad will actually react or feel.They need to feel open to actually discuss with both of you. ‘I watched this TV or I went to after school or before school care.’ It’s an open discussion and open dialogue. If children feel that the difference is actually not accepted by that parent they’re less likely to talk and less likely to feel that it’s ok to share their life with that respective parent. Shared care requires the parents to actually have an alignment, not necessarily an agreement, but certainly an alignment to allow that to happen freely and without the child having to edit what they think they’ll tell the other parent.”
The husband challenged Dr R on her finding that he was not respectful of the wife and her lifestyle. Dr R gave evidence that that was not the impression she formed as a result of her interviews with the husband because of his criticism of the wife, and in particular of the amount of television [X] was allowed to watch in the wife’s home and that the wife utilised after school care.
Dr R was asked to clarify in her oral evidence why she felt that a shared care arrangement for [X] would not be in her best interests at this time. Dr R gave evidence in the following terms:
“She is in Preps in school. It’s a very, very big year for children to go from Kinder to Preps. They learn routines, they adjust their life. At this stage, she’s having to adapt to so many things and a huge change – shared care will be a huge change for her. And it’s one that I felt needs to be done in a gradual manner if that was appropriate at a later time… I think one more level of disruption with what shared care would actually bring an adjustment would be a huge overload for such a young child.”
The husband asked Dr R whether a gradual increase in time in fact would be more disruptive for [X] than a single change immediately to shared care. It was Dr R’s evidence that such a gradual increase is not disruptive and in fact it helps children cope better with changes if they are done appropriately over time.
Dr R was asked whether it would be in [X]’s best interests to have orders made now that would make provision for a graduated introduction of shared care over time.
It was Dr R’s evidence that it would be premature at this stage to assume that a move to equal time will be in [X]’s best interests. It was Dr R’s evidence that she believed that before any orders for shared time were to be made that there should be a further assessment of [X], of the parental relationship as well as ascertaining [X]’s views about her living arrangements as she would be older and more able to put those views before the court.

The best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
Orders have been in place that the parties have equal shared parental responsibility for [X] since 2006. Whilst the parties have vastly different values and lifestyles, they are joined in their genuine love of and desire for the best for their daughter [X]. They have been able to communicate with each other in relation to her and both acknowledge an ongoing commitment to continuing to do so. I am satisfied that orders that provide for equal shared parental responsibility to continue are in [X]’s best interests.
Where an order is made for the parties to have equal joint parental responsibility for their child, section 65daa of the Act requires the court to consider the child spending equal time, or substantial and significant time, with each parent.
Section 65daa provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)     the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

Clearly it is the husband’s proposal that [X] spend equal time with him whilst it is the wife’s proposal that [X] live with her and spend significant and substantial time with the husband.
When making a decision as to what arrangements are to be put in place for a child, whether it be equal time, significant and substantial time or some other arrangement, the Act clearly sets out that the orders the court must make be in the best interests of that child. In order to determine what is in the child’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters set out in subsections 2 and 3 of section 60cc of the Act will, where relevant, be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision will be made as to which of those proposals, or such other proposal as the court determines, is in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

[X] has a close and loving relationship with both her parents.
The husband is concerned that [X]’s relationship with him is not as close or as meaningful as it should or could be because she has not been afforded the opportunity to spend equal time with him. I do not believe that to be the case. [X] has spent substantial time with her father since her birth, spending ongoing and consistent time with him on a weekly basis. This has enabled her relationship with her father to develop and grow and their relationship is, as previously noted, a close and loving one. Both parties’ proposals ensure that this will continue.
Fortunately, there is no issue that [X] will be subjected to abuse, neglect or violence in the care of either of her parents.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and I will consider each of these in turn where relevant.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

As [X] is only five years of age, her views as to her living arrangements were properly not sought by Dr R.
An incident was reported by the wife in 2009 whereby [X] refused to go with the husband on Father’s Day because it was a Sunday and [X] was of the view that she always spends weekends with her mother and goes to her father whilst:
“mummy is at work”.
Dr R expressed the view that it was very important for [X] to realise that she spends leisure time with both her parents and that her time with her father is about being with her father and not just because her mother is at work. It was for this reason, amongst others, that Dr R recommended that [X] commence spending weekend time with her father so that she had the opportunity to experience both school and leisure time with both her parents.

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

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

As set out earlier in this judgment, [X] has a close and loving relationship with both her parents.
The husband shares his home with Ms S and [X] is reported to have a close and positive relationship with her.
The wife has re-partnered with Mr K and the relationship between [X] and Mr K is also reported to be a positive one.

Section 60cc 3(c) 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

In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)    has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii)   to communicate with the child; and
(b)    has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Despite their acknowledged differences in values and lifestyle and their continued inability to agree as to what the living arrangements should be for [X] in the context of the time she spends with each of them, the parties have co-operatively parented [X] for most of her life.
In 2008, through mediation, they were able to agree to [X] spending more time with her father.
Both parties gave evidence of working together in relation to [X]. The husband attends [X]’s ballet concerts. The husband told of a recent interaction between the parties where they reached agreement not to purchase a certain item for [X] that they both thought was
age-inappropriate for her.
Whilst acknowledging they had difficulty in communicating when they first separated, both parties described their current communication as being civil and ongoing.
Having said that however, the very different lifestyles and values that each parent have continues to be a challenge that both parents are going to have to better meet. Dr R was quite clear that until both parents, and in particular the husband, are better able to accept the life choices of the other and in so doing enable [X] to experience the differences in both her parents’ households in a positive way, these differences will cause ongoing difficulties for [X].
The reality is that until those adjustments are made, a consideration for shared care is going to be fraught with difficulty.

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

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

Both parties are happily settled in their current locations and there was no indication that either are intending any changes in the near future.
Both parties’ proposals will not change [X]’s circumstances or impact on her capacity to have an ongoing relationship with both her parents.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

When the initial living arrangements were put in place for [X], the wife was living [on the Mornington Peninsula] and the husband was living in [Melbourne]. The wife has subsequently moved to [Melbourne] and this is where [X] now goes to school.
This means in practical terms that the parents are only some 20 to 30 minutes apart and in that regard there are no practical problems for [X] spending time with both her parents.
The wife raised some concerns about the impact this relatively minor distance had on [X] in terms of getting her to school and being able to attend after school plays or birthday parties when in her father’s care. [X] has been living with her father during the school week for the whole of this year and there does not appear to have been any practical difficulties as far as this is concerned. In addition, the husband gave clear evidence that he will continue to ensure that [X] has the opportunity to interact with her school friends and I am more than satisfied that he will ensure this continues into the future.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

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

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

I am satisfied that both parents have the capacity to provide for [X]’s physical, emotional and intellectual needs.
Having said that however, as previously noted in this judgment, both parents need to ensure that they recognise the importance of respecting the other’s life choices and values and in so doing enable [X] to move comfortably between both homes, confident in the knowledge that both her parents support her in her relationship with the other.
This will be particularly so for Mr Ferrier as his passionate commitment to the causes he supports and the values that he holds can overwhelm the need to remember that [X] is a little five year old girl who must be allowed to embrace her childhood and the joys and delights that that brings her.

Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The husband is of Sri Lankan background and is keen for [X] to embrace her Singhalese background and heritage.
The husband also has chosen to lead a different lifestyle in which he eschews material gain and in which he encourages an acceptance of difference and diversity and promotes the importance of improving the lives of those less fortunate.
[X] will be given the opportunity to develop, as she matures, her own understanding of the values and lifestyles of both her parents and make her own decisions as to what aspects of those experiences she incorporates into her future life decisions. In paragraph 41 of her Report, Dr R put it very succinctly when she said:
“There is no doubt that in time it is most likely [X] will come to appreciate her father’s achievements and may choose some of these values to add to her own repertoire of values, opinions and ideals she will form as she progresses through life.”

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

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

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

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Both parties are committed, loving and responsible parents who adore their daughter.
The parties have been in dispute since [X]’s birth as to the best living circumstances for their daughter. The husband has maintained for the entirety of [X]’s life that it is in her best interests that she live equally with both of her parents, whilst the wife is of the view that until [X] is older, such an arrangement would not be in her best interests.
This ongoing tension has coloured their relationship and has at times interfered with their capacity to ensure that [X] remains their primary focus.
Having said that however, [X] is described as a warm, very friendly and inquisitive young child who is physically well cared for and is successfully progressing through her developmental milestones. This surely is a reflection of the positive parenting that she has received from both her mother and father.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

Not relevant.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

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

Not relevant.

Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

There is no doubt that Mr Ferrier is going to be very disappointed in the decision that has been reached by me as to what is the best arrangements for [X] at this time.
The husband will have real difficulty in accepting that any arrangement other than shared care is in [X]’s best interests and, in all probability, will institute further proceedings in the event that he and the wife are unable to reach agreement as to this ultimately being the living arrangement for [X] in the future.
Whilst it would be tempting to make orders at this time that make provision for a graduated increase of time between [X] and her father that culminates in equal time, I am persuaded by Dr R that any orders in those terms at this time would be precipitous and that there would need to be either a mutually agreed decision reached by her parents (ideally) at a time in the future when both of them decide that that would be what is best for [X] or failing agreement, a further assessment is made as to the state of [X]’s relationship with each of her parents, the parental relationship, [X]’s views and her readiness for such an arrangement.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

As noted earlier in this judgment the parties, to their credit, were in agreement as to arrangements around special occasions save and except for Christmas.
The husband conceded that he does not celebrate Christmas in the traditional sense but was of the view that it was important for [X] to experience the different ways that Christmas can be celebrated depending upon the beliefs in the households of each of her parents.
In her mother’s household I imagine that [X] would wake up on Christmas morning to a Christmas tree, presents and family festivities as has been her experience each year in her life to date.
In her father’s household there would be a recognition of the importance of the day but it would be celebrated in a different way.
In the circumstances, I am satisfied that [X] should be given the opportunity to experience Christmas in the different ways that her parents do and will be making orders accordingly.

Conclusion

Two parents with very different lifestyles and very different values have a delightful young five year old whom they both love and adore.
The husband is an intense, passionate and articulate man who has made a very definite decision as to how he leads his life and in so doing has made an enormous contribution to the community in which he lives.
He has a strong sense of justice and equality, and passionately believes that the living arrangements for his daughter should be a reflection of those values.
Whilst many of those beliefs are laudable, the reality is that we are dealing with a young five year old girl and the decision of this court must be made on the basis of what is in her best interests in the context of her age, current developmental requirements and are such that they respect what she needs at this time in her life.
It is my observation that the husband, because of his passionate beliefs, is unable to separate [X]’s needs from his own beliefs and values. In so doing, on some level, he is failing to see [X] as an individual and as a young child whose needs and developmental requirements outweigh his strongly held principles.
Living arrangements that provide for a young child to have a home base with their primary carer and to spend significant time with their other parent are not a reflection of the parenting capacity or the qualities that each of those individuals bring to the lives of their child. Throughout that child’s life, both parents are of equal importance and that is not measured by the number of nights their child sleeps in each of their respective homes.
I am satisfied that at this time in [X]’s life, because of her age, because she’s just started school and because both her parents have different values and lifestyles which at this time are not fully respected by the other, it is in [X]’s best interests that orders be made that she live with her mother and spend significant and substantial time with her father such that she spends two nights with him in week one during the school week and two nights with him over alternate weekends, extending to three nights starting in Term One 2011.
In relation to school holiday arrangements, I note that this judgment is being delivered after the commencement of the September 2010 school holidays and I will make orders for [X] to spend four days with her father in week two of those holidays.
When the summer school vacation starts in 2010/2011, I will make orders for [X] to spend three blocks of time with her father, the first being for four days and the next being for two blocks of five days and thereafter the arrangements that the parties themselves have agreed to will come into play.
In relation to Christmas I have already indicated my determination that [X] should be able to experience Christmas Eve and Christmas Day with both her parents and I have made orders accordingly.

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 27 September 2010