FLECK & FONTAINE

[2013] FamCA 739

FAMILY COURT OF AUSTRALIA

FLECK & FONTAINE [2013] FamCA 739

FAMILY LAW – CHILDREN – Best interests – Where the father has not participated in the final hearing after his application for an adjournment was dismissed – Where there is agreement between the mother and the Independent Children’s Lawyer for the child to live with the mother and for the mother to have sole parental responsibility for the child – Where the Family Consultant raises concerns about the mother’s capacity and her involving the child in parental conflict.

Mazorski & Albright (2007) 37 Fam LR 518

Family Law Act 1975 (Cth)

APPLICANT: Ms Fleck

RESPONDENT: Mr Fontaine

INDEPENDENT CHILDREN’S LAWYER: Ms Mahony

FILE NUMBER: PAC 4678 of 2007

DATE DELIVERED: 20 September 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16, 17, 18 and 19 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mahony of Mahony Family Lawyers

Orders

By consent of the Independent Children’s Lawyer and the mother:

1. All previous Orders in relation to H Fontaine born … 2006 (“the child”) are discharged.

2. The mother is to have sole parental responsibility for the long term care, welfare and development of the child.

3. The child is to live with the mother.

4. The child is to spend time with his father as follows:

   (a)Each alternate weekend from the conclusion of school Friday, or 3.00 pm where non-school day, until the commencement of school, or 9.00 am where non-school day, the following Monday.

   (b)For half of each New South Wales school holiday period (excluding the Christmas school holiday period) from the conclusion of school on the last day of term until 9.00 am on the middle Saturday of the school holidays.

   (c)For two weeks of the Christmas school holidays, specifically being week 3 and week 5 of the holiday period, commencing at:

   (i)9.00 am on the third Saturday following the last day of school attendance and concluding at 5.00 pm the following Friday; and

   (ii)9.00 am on the fifth Saturday following the last day of school attendance and concluding at 5.00 pm the following Friday.

5. The father’s time be conditional upon the father sending to the mother a confirmation SMS text message no less than twenty-four (24) hours prior to any such period of time that the father is to spend time with the child in accordance with these Orders, confirming that he will be spending time with the child.

6. In the event that the father does not confirm contact pursuant to Order 5 above, the mother is at liberty to care for the child during the period of time that the father would otherwise be spending time with the child.

7. For the purposes of changeovers in respect of Order 4 above:

   (a)Where the father’s time with the child is due to commence at the conclusion of a school day or conclude at the commencement of a school day, changeover is to occur at the child’s school; and

   (b)At all other times changeover is to occur at the McDonalds Family Restaurant … or such other place as the mother nominates from time to time.

8. The father’s time with the child pursuant to Order 4 above, and subject to Order 5 above, be suspended at such times as the child undertakes organised sporting events on Saturdays. Specifically, the father’s time in such instances is to be suspended from the conclusion of school on the Friday, or 3.00 pm where a non-school day, to the conclusion of the organised sporting activity on the Saturday.

9. Where the father’s time with the child commences in accordance with Order 8 above, changeover is to occur at the conclusion of the subject sporting activity and at whichever sporting venue it has been scheduled, with the father to attend no later than fifteen (15) minutes before the anticipated conclusion of the sporting event.

10. In the event that the father has not attended the sporting venue by the conclusion of the child’s game as provided for in Order 9 above, the father’s time with the child on that weekend is suspended and the mother is at liberty to continue to care for the child for that period.

11. Each party is to do all things necessary to ensure the child attends any appointments scheduled with counsellors, doctors or other health professionals and that the child undertakes any treatment or other activities prescribed and directed to be undertaken by their counsellor, doctor or other health professional.

12. Each party is to notify within twenty-four (24) hours, by SMS text message, if the child attends upon a medical practitioner or any medical facility, including emergency rooms, for any non-emergency treatment.

13. In the event of the child suffering a medical emergency requiring medical attention whilst the child is spending time with or living with either parent:

    (a)The other parent is to be notified as soon as practicable and at least within one (1) hour of admission.

    (b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.

    (c)The medical practitioner or medical facility is to be advised that the other parent is permitted to have access to the child’s medical records and the information obtained with them upon request.

14. The mother be permitted to solely apply for and/or do all things necessary, including being a sole signatory, to obtain or renew a passport for the child.

15. The child’s passport is to remain with the mother.

16. The father be at liberty to telephone the child on a telephone number nominated by the mother between 6.00 pm and 6.30 pm on each Monday and Thursday evenings that the child is not in his care, and the mother is to facilitate such calls by ensuring the child is available and a telephone line is available for such purpose, and the mother is to ensure that the child is left in privacy to take and participate in the call.

17. Each party is to inform the other party of their address and mobile telephone number and is to notify the other party in writing within forty-eight (48) hours of any change.

18. Neither party is to denigrate the other party in the presence or hearing of the child, and each party is to ensure that no third party denigrates the other party in the presence or hearing of the child.

It is ordered:

1. The mother is to inform the father by SMS text message no less than twenty-four (24) hours prior to each weekend sporting event of the relevant details, including the time and location of that event.

2. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fleck & Fontaine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4678  of 2007

Ms Fleck

Applicant

And

Mr Fontaine

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. This matter concerns H (“the child”), who is almost seven.  The child’s father, Mr Fontaine, (“the father”) and mother, Ms Fleck, (“the mother”) had a brief sexual relationship in 2006, which resulted in the child’s birth.  They did not cohabit.

2. Parenting proceedings were commenced when the child was nine months old, and there have been ongoing parenting proceedings or contravention proceedings before the Court almost constantly since that time.  These proceedings for parenting orders were initiated by the mother in August 2011, initially in the Federal Magistrates Court, as it then was, and on 10 July 2012, were transferred to the Family Court.

3. In her Amended Initiating Application filed 26 June 2012, the mother seeks orders for sole parental responsibility of the child, that the child live with her and that the father have supervised time with the child.  At the commencement of the proceedings, the mother indicated that whilst she still sought an order for sole parental responsibility and that the child live with her, an order for the child to spend time with his father was no longer required by her to be supervised.  In the course of the proceedings, the mother indicated that she consents to orders in terms of the Independent Children’s Lawyer’s minute of order.

4. The only evidence the mother relies on is her affidavit filed 25 June 2013. 

5. The father has not participated in the hearing of the application.  The father filed a Response to the mother’s original Initiating Application, but I am not aware of his response to the mother’s amended application or to the orders now agreed to by the mother and the Independent Children’s Lawyer.  I understand from the Family Consultant’s report that the father proposed that the child live with him, that he be “fully responsible” for the child and that the child spend time with the mother at a supervised contact centre.  According to the Family Consultant’s report, the father said on 19 December 2012 that he was seeking these orders and that the time the child was to spend with the mother be subject to the determination of the Judge, but should be contingent upon her (the mother) seeing a child psychologist and undertaking a parenting course.

6. On the first day of the hearing, 16 September 2013, the father appeared by telephone and made an oral application for an adjournment for six to eight weeks.  For reasons given on that day, the application was dismissed and the matter was stood over to 17 September 2013.  The father was made aware that if he did not appear, none of the affidavits filed by him in support of his Response would be considered by the Court.

7. As the only parties participating in the hearing, that is the mother and the Independent Children’s Lawyer, have reached consent in relation to proposed orders, the only issue for the Court to determine is whether these orders are in the child’s best interests. 

The uncontested facts

1. The only evidence before the Court in relation to the facts is that contained in the single affidavit relied upon by the mother and the Family Report.

2. I am satisfied of the accuracy of the following background facts ascertained from these documents.

3. The mother, who is of Maori heritage, has four other adult male children, one of whom until very recently lived with her.  The mother, her other children and then-partner moved to Australia in 1997 and originally lived in central New South Wales.  In 2001, when that relationship broke down, the mother moved to Sydney and commenced working in the transport industry.  The father worked at the same company in 2005 and following what the mother describes as a “brief encounter”, she became pregnant with the child.  The mother says she did not see the father until the child was born in November 2006.

4. The parties have been involved in an almost constant family law litigation since the child was nine months of age.  Throughout this time, the child has almost always lived with his mother and spent time with his father.

5. Under Orders made by consent in June 2010, the parties had equal shared parental responsibility for the child, the child lived with his mother and spent time with his father.  At the time of the Family Consultant’s report (February 2013), the Orders provided for the child to spend time with his father from 3.00 pm Friday to 9.00 am Monday in alternate weeks, from 3.00 pm Wednesday to 9.00 am Thursday in each week and for half of each school holiday period.  There were other provisions for special days, arrangements for overseas travel and arrangements for the child’s transition between parents and other matters.

6. The child has a good relationship with the extended paternal family, especially a paternal uncle, Mr F.  This uncle is also well regarded by the maternal family.  The child also had spent considerable time with and has had a good relationship with his parental grandparents.  The paternal grandfather died in April 2013 and all the paternal family and the child suffered from feelings of grief and loss.

7. The child attends a local public school and is well settled.  Prior to his commencement at school there was considerable friction between the parents over school enrolment with the father preferring a private religious school.

8. The child participates in a range of activities outside school, including being a member of a rugby league team.  Rugby is important to the child, but he has missed a number of games on occasions when spending time with his father.

9. The mother has made a number of allegations against the father over the years including physical and sexual abuse perpetrated by the father around March 2012, which have always been denied by the father.

10. There has been considerable acrimony between the parties over many issues over the years and from at least January 2013 concerning changeover arrangements for the father to spend time with the child.  The father’s wife, Ms C, has been extensively involved in practical arrangements relating to changeover.  There have been occasions when the father has cancelled the time to be spent with the child under the Orders.  In particular, the father did not collect the child from school on Wednesday 18 September 2013 during the hearing as provided for in the Orders, or make any contact with the mother to explain this failure. 

11. The parents only communicate by text message.   

12. The father has suffered from a back injury and knee injury for some time and has, on occasions including in January 2013, been hospitalised.

13. There has been dispute for some time over child support.  Recently, the Child Support Agency has calculated that for January to June 2013 the father is not required to pay any child support and whilst the mother’s care percentage is 65 per cent, her cost percentage is 75 per cent.

14. The parties were interviewed by the Family Consultant in December 2012, and at that stage, although the matter had been managed as a Magellan matter, and there were about 14 risk of harm reports in relation to the child throughout his life, the Department of Family and Community Services have not taken any significant action in response to the reports.

15. There were no current family violence orders identified between the parents and no family violence matters were raised with the Family Consultant.

16. The mother is living in a three bedroom unit in Suburb M. Until recently, one of her elder sons has been residing with her, but now it is only herself and the child who currently reside in that unit.  It is close to the child’s school.

17. The Family Consultant reports that the father resides in a two bedroom house in Suburb S, which he had said he was purchasing.  He resides with his wife, their newborn child and his wife’s two children of a previous relationship reside with them six nights in a fortnight.  The residences are approximately 12 kilometres apart, or a 20 to 25 minute drive.

The Family Consultant’s Evidence

1. The Family Consultant recommends that there be no significant changes to the child’s parenting arrangements, other than a consolidation of the father’s time into one block period to avoid the parents coming into contact with one another.  He recommends changeovers take place at school and that the father’s time be slightly reduced to accommodate a changeover after school on Friday afternoon and before school on a Monday morning each alternate weekend.

2. The Family Consultant reported the parental conflict has been significant and long standing; that it had not improved, but had deteriorated over time.  The parties had been in family law litigation the child’s whole life.

3. Because of the parental conflict, the consultant was of the view that the potential for both parents to have a positive relationship with the child had eroded over time, and neither parent appeared willing or able to foster a positive relationship between the child and the other parent.  He noted that the parties had previously been involved in Keeping in Contact program, but it did not appear to have assisted them.

4. The high conflict and poor parental communication contraindicated a shared care arrangement for the child.  The consultant was unable to say whether one or either parent had a greater parenting capacity.  It was his view that it did not appear the child would be significantly advantaged by a change in residence to live with his father, but rather, it would have a disruptive impact upon him. 

5. The Family Consultant agreed that the lack of communication and conflict tended towards sole parental responsibility being allocated to the live with parent.  This would likely reduce the child’s exposure to the parental conflict, along with a reduction in changeovers where his parents come into contact with one another.  He said ultimately it would be best if the parties could improve their communication and start to agree on long term decisions, as this would be in the child’s best interests.

6. In relation to the allegations of physical assault by the father alleged by the mother, the Family Consultant felt that the child’s recounting of the event “lacked contextual detail” and “did not appear emotionally congruent”.  The Family Consultant noted subpoenaed material had not supported the child’s version of events that he had been injured by his father at all, let alone taken to the hospital or in an ambulance as the mother had initially alleged in these proceedings.

7. The Family Consultant noted no sexually inappropriate or abusive behaviour by the father or his wife towards the child was raised by the mother or child at interview.

8. The risk of harm to the child identified by the Family Consultant is the potentially negative impact upon his mental health and wellbeing of ongoing exposure to and involvement in the parental conflict.  He said the child may, as a result, experience future difficulties in his academic performance and his ability to establish and maintain peer and other important relationships.

9. So far as the mother is concerned, the Family Consultant was concerned with the mother’s apparent “preparedness” to involve the child directly in parenting decisions.  Under cross-examination, the Family Consultant said it was possible the mother had been unaware that she was involving the child inappropriately in parental matters.  He gave her the benefit of the doubt in this regard, but said that if the mother persisted and was unable to see the harm it was causing the child, she may be unable to change her ways, and this was a matter of concern. 

10. The Family Consultant was also cross-examined about the mother accepting the instances of physical and sexual harm relayed by the child to her.  He said that in the interview he had not been able to make an assessment of whether or not the mother would be able to think through what the child reports to her and respond in a more appropriate way than she had done so to date.  However, he cautioned if the mother were to respond in a manner that was contrary to what the child thought to be correct (as in what his father’s views were, for example) this may cause the child to become confused and stressed.  He could not predict how the child would respond to such stress, but reported it would put an “unnecessary mental load” upon him and may “compromise his ability to function in society”.  This could include his difficulties in his education, in his employment and so forth.

11. So far as spending time with the father is concerned, overall the Family Consultant felt that the child’s expressed views during the interview (that he feared his father) were at odds with his observed interactions with his father.  The child did not appear fearful, but rather appeared to seek a positive relationship with his father.  The Family Consultant says that this is consistent with earlier Family Reports prepared, where no significant concerns were identified in respect of the father-son relationship.

1. It was the consultant’s view that because the child was now older, it was possible he would be more likely aware of the parental conflict and be drawn into alignment with his mother.  Parts of the child’s interview raised concerns for the consultant that the child “may have been subject to undue pressure or influence by [the mother] (or others associated with her)”. 

2. The Family Consultant recommended that the child spend a slightly reduced amount of time with the father as a result of it being consolidated into a single block.

3. Under cross-examination, the Family Consultant agreed that the Independent Children’s Lawyer’s Minute of Proposed Orders were within the scope of what he was recommending.  He agreed it would be best if changeovers were to take place in a public place, if not at school, and this could be after the child’s rugby games.  He could not recommend either way whether the child’s sporting commitments should be prioritised over a slight further reduction to the father’s time to ensure that the child was taken to rugby by his mother, but agreed that there were benefits to children participating in team sports.

4. Finally, the Family Consultant did not view a flexible arrangement would work in this case in respect of the father’s time as he felt such an arrangement would not be of benefit to the child.  He recommended clearly defined rules and no capacity for negotiation between the parents. An arrangement where the opportunities for the parents to come into physical contact were reduced was viewed by him as the “least detrimental” to the child.  The optimal arrangement would be his parents cooperating, but that did not appear to be a possibility in this case.     

5. The mother did not challenge the Family Report and I accept this report and the oral evidence of the Family Consultant.

The Areas in Dispute

1. There were a number of other asserted facts, which although not contradicted by the evidence, I do not accept.  In particular, I am not satisfied that the father physically assaulted the child, nor the allegations of sexual abuse.  In the course of the hearing it appeared that the mother resiled from asserting these events in fact occurred, but maintained the child told her they occurred.

2. I accept the Family Consultant’s view that the child may have made the allegations because he is aware of the parental conflict and has been drawn into alignment with his mother.  The allegations themselves are also inherently unlikely, and in relation to the alleged physical assault, are not supported by any evidence, including documents from the hospital and ambulance produced on subpoena.

Submissions

1. The Independent Children’s Lawyer proposes that the mother have sole parental responsibility for the child, that the child live with his mother and that the child’s time with his father be consolidated to each alternate weekend from after school on the Friday to before school on the following Monday.  It is also proposed the father spend time with the child during school holidays, for half of the school term holidays and for a total of two weeks over the Christmas school holidays, divided into two one week periods. 

2. It is proposed that changeovers take place, where not at school, at McDonalds (as is currently occurring) or a place nominated by the mother.  When the child is participating in sport on a Saturday, it is proposed that the father’s time be suspended on the Friday and commence at the conclusion of the sporting activity on the Saturday, to ensure the child participates in his sporting activities.  If the father does not attend at the sporting venue, the father’s time is to be suspended on that weekend and the mother is to be at liberty to care for the child that weekend.

3. It is the Independent Children’s Lawyer’s position that the father should provide notification to the mother, not less than 24 hours in advance, by way of a confirmatory message, that he will be spending time with the child on each given occasion.  In the event that the father does not provide such confirmation, the contact will not occur and the child will remain with the mother for that time.

4. It is submitted that all the evidence in this case points to the mother having sole parental responsibility for the child, as being in the child’s best interests.

5. It is submitted that the consolidation of the father’s time into one block is in accordance with the Family Consultant’s recommendation, and would benefit the child in that the reduction of his exposure to the parental conflict would outweigh the small reduction in the father’s time.

6. It is submitted that structured, set times are in the child’s bests interests in respect of the father’s time.

7. The mother agrees with the Minute of Order proposed by the Independent Children’s Lawyer.  She submits that because she and the father can never agree to anything, and cannot communicate, that she should have sole parental responsibility for the child.  She agreed with the consolidation of the father’s time into one block period.

The Law and its application to the Facts

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in section 60B, form the framework for the part of the Act dealing with parenting.

2. According to section 60CA of the Act, 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.

3. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests. 

4. The primary considerations (under s 60CC(2)) are:-

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

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

5. The mother and the Independent Children’s Lawyer recognise the benefit to the child of having a meaningful relationship with both of his parents.  The Family Consultant recognises this in recommending that beyond consolidation of the father’s time with the child into a single block period in a fortnight, no significant changes to the parenting arrangements for him are recommended.  Bearing in mind the acceptance by the Full Court of the definition in Mazorski & Albright[1] of a “meaningful relationship” as a “significant relationship”, the proposed orders, in my view, meet this primary consideration.

   [1] (2007) 37 Fam LR 518

6. So far as the need to protect the child from harm is concerned, the only relevant harm, about which I am satisfied, is the psychological harm that has arisen from the significant and longstanding conflict between the parents over the child. 

7. The Family Consultant’s recommendation is that the impact of the conflict, lack of appropriate communication between the parties and the different approaches to parenting may be reduced if the child’s time with his father were consolidated to reduce the number of changes between the households for the child in a fortnight.  Whilst recognising that a reduction in time spent with the father could be considered as a means of protecting the child from the conflict between his parents, the Family Consultant said that it was not clear that an increase in the child’s time with the mother would necessarily benefit him.  However, in my view, a change of heart in the mother has occurred in the course of these proceedings and I am satisfied that she now recognises the harm done by her own actions as a result of the ongoing conflict with the father and in her involving the child directly in the negotiations between herself and the father. 

8. I turn to the additional considerations that are relevant in this case, as set out in section 60CC(3) of the Act.

9. At interview, the child was only six years old.  In light of this factor alone, I place little weight on his views.  He expressed to the Family Consultant that his father “hates” him and that his father hits him.  However, the child’s expressed views appeared to the Family Consultant to be at odds with his observed interactions with his father at interview.  Despite the alleged assault and his expressed views, he did not appear fearful of his father, but rather appeared to seek a positive relationship with his father.

10. The Family Consultant expressed a concern that the child’s views may have been subjected to undue pressure or influence by his mother.  His views therefore appear to not be reliable in any event.  Given all these factors, I place little weight on the child’s views.

11. The child has good relationships according to the Family Consultant with each of his parents and also with the father’s wife and the paternal grandmother.  The proposed orders will facilitate the extended family relationships being supported. 

12. Each of the parents has taken an opportunity to participate in making decisions about major long term issues, to spend time with the child and to communicate with him.  However, the attempt of the parents to participate together in making decisions about major long term issues has been wholly unsuccessful.  It is the Family Consultant’s view that the parents do not appear to have the capacity to communicate about parenting issues in a manner that would make continuing equal shared parental responsibility a viable possibility for the child. 

13. The Family Consultant felt that providing the mother with sole parental responsibility for the child could be a means of reducing the conflict around the child, but was not sure that such a situation would ultimately be in the child’s best interests.  He noted the difficulties the child experienced when his parents failed to cooperate on even relatively simple matters, such as ensuring that the child attended extracurricular activities.

14. The situation in relation to the extent to which each of the parents has fulfilled or failed to fulfil the obligations to maintain the child is concerned, was not able to be determined by me.  There clearly has been some dispute over the payment of child support in the past.  Currently, the mother maintains the child to a greater extent than the father. 

15. So far as the likely effect of any change in the child’s circumstances under the proposed orders is concerned, it is the view of the Family Consultant, which I accept, that a consolidation and reduction in the father’s time could protect the child from the conflict between his parents.  The order requiring the father to contact the mother via text message and confirm that he will attend to spend time with the child should also reduce the current uncertainty that appears to be experienced from time to time.  The order that changes the commencement time of the father’s time to the end of any sporting event will also likely promote the chances of the child being able to consistently participate in sport. 

16. There should be no practical difficulties or expenses relating to the child spending time or communicating with each of his parents, if these orders are complied with. 

17. Each of the child’s parents seem capable of meeting his needs other than his emotional needs due to the conflict in their relationship.  The mother has, at least in these proceedings been made aware of the impact of her conflict with the father and involving the child in it has had upon the child.  The Family Consultant was not confident that the mother was necessarily capable of making all the necessary changes as this behaviour has been entrenched.

18. The only particular cultural issue that arises in this matter is that the child is of Maori heritage, which will be promoted within his home with his mother and half-brothers and also through travel to New Zealand with his mother and maternal family. 

19. The mother is also of a particular Christian faith and has expressed a desire to have the child participate in church, whilst the father describes himself as an atheist and does not believe that it is appropriate for the child being exposed to that faith’s teachings.  Under the proposed orders, the child will continue to be with his mother every second weekend and will be able to participate in church activities during that time.

20. Each of the parents shows a loving attitude towards the child and appears to each recognise many of the responsibilities of parenthood.  The areas in which the parents have not acted responsibility such as changing arrangements on short notice so the child may miss out on activities should be reduced by these clear orders.

21. As I am not satisfied of the only matters of family violence that have been alleged, there are no issues in relation to family violence in this case.

22. It is preferable to make orders that would least likely lead to the institution of further proceedings and for that reason, these orders are more defined and less flexible.  This will hopefully eliminate contravention applications in the future.

23. As to parental responsibility, section 61DA of the Act provides that 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.

24. This presumption may be rebutted if the Court is satisfied that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility (subsection (4)).   For the reasons I have already set out, that is that the parents are in high conflict, that they are unable to communicate and that they have a history of not being able to successfully make decisions together in respect of matters such as the child’s schooling, I find that the presumption is rebutted on the evidence.  I am therefore satisfied that it is in the child’s best interests that his primary carer have sole parental responsibility for him, and that is his mother.

25. Given that I have decided that the mother is to have sole parental responsibility for the child, I need not turn to section 65DAA of the Act in respect of the child’s time with the father.

Conclusion

1. Based on the evidence before me, I am satisfied that the orders proposed by the Independent Children’s Lawyer, consented to by the mother, are in the child’s best interests.  I note that the Family Consultant viewed the proposed orders as within scope of his recommendations.

2. I find they are in the child’s best interests as the consolidation of the father’s time and the changeovers taking place at school will reduce the parental conflict.  I find that they are in the child’s best interests in that he is able to participate in extracurricular activities. 

3. The orders promote the child’s relationship with both his mother and his father, and I am satisfied that the defined times and the requirement for the father to confirm that he will spend time with the child, will reduce uncertainty and confusion that previously existed for these parties in respect of the child’s parenting arrangements and hopefully in turn will reduce the parental conflict for the child’s sake.  

4. For the reasons I have outlined, I make the orders set out at the forefront of these reasons for Judgment.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 September 2013.

Associate:                 

Date:    25 September 2013