Gates and Harper

[2011] FMCAfam 123

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GATES & HARPER [2011] FMCAfam 123

FAMILY LAW – Child aged 5½ years at trial – child lives predominantly with the mother – poor relationship between the parents – father seeks residence of child on the basis that the mother is obstructive of the child’s relationship with the father – mother proposes substantial and significant time for the child with the father – best interests of child.

Family Law Act 1975 (Cth), Part VII

Goode & Goode [2006] FamCA 1346; (2007) 36 Fam LR 422
Mazorski & Albright (2007) 37 Fam LR 518 at 526
McCall & Clark [2009] FamCAFC 92, (2009) 41Fam LR 483
G & C [2006] FamCA 994
MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531

Applicant: MR GATES

Respondent: MS HARPER

File Number: NCC 2169 of 2007

Judgment of: Coakes FM

Hearing dates: 6 & 12 August 2010

Date of Last Submission: 12 August 2010

Delivered at: Wauchope

Delivered on: 28 February 2011

REPRESENTATION

Counsel for the Applicant: Mr M Graham

Solicitors for the Applicant: Meredith & Co Solicitors

Counsel for the Respondent: Mr A Mooney

Solicitors for the Respondent: Jennifer Blundell & Associates

THE COURT ORDERS THAT:

1. All previous parenting orders are discharged.

2. The parents have equal shared parental responsibility for the child [X] born [in] 2005 (“[X]”).

3. Each parent is to have sole responsibility for making decisions concerning [X]’s day to day care, welfare and development while he is in his or her care respectively.

4. The parents are to consult each other in relation to any long term issue in relation to [X] and are to make a genuine effort to come to a joint decision about issues concerning his care, welfare and development which include (but are not limited to) issues of that nature about:

   (a)His education both current and future;

   (b)His religious and cultural upbringing;

   (c)His health;

   (d)His name;

   (e)Changes to living arrangements for him that make it significantly more difficult for him to spend time with either parent.

5. [X] live with the mother.

6. [X] spend time with the father as follows:

   (a)During school terms applicable at the school attended by [X], each alternate weekend from the end of school on the Friday until the commencement of school on the following Monday morning, or Tuesday morning if the Monday is a Public Holiday or pupil free day, with such weekends to commence on the first weekend of the new school term if [X] has spent time with his father during the first half of the immediately preceding school holidays or on the second weekend if [X] has spent time with his father during the second half of the immediately preceding school holidays;

   (b)During school terms applicable at the school attended by [X], from the end of school each Wednesday to the commencement of school the next day, Thursday, to commence on the first Wednesday of the new school term if [X] has spent time with his father during the second half of the immediately preceding school holidays or on the second Wednesday if [X] has spent time with his father during the first half of the immediately preceding school holidays;

   (c)For one half of each school holiday period applicable at the school attended by [X], such half to be as agreed but in the absence of agreement for the first half in even numbered years commencing at 10.00am on the first Saturday of such holidays and concluding at 5.00pm on the date mid-way through such holidays, and in those years commencing with an odd number, for the second half of such holidays commencing at 10.00am on the mid point of such holidays and concluding at 5.00pm on the last Sunday before school resumes;

   (d)If not otherwise spending time with the father pursuant to these Orders, in even numbered years from 4.00pm on 24 December until 4.00pm Christmas Day 25 December, and during the Christmas school holidays commencing in odd numbered years from 4.00pm on Christmas Day until 4.00pm on 26 December;

   (e)If not otherwise spending time with the father pursuant to these Orders, on Father’s Day weekend from the conclusion of school on the Friday until the commencement of school on the following Monday;

   (f)At such other times as the parties agree.

7. The times during which [X] is spending time with the father pursuant to these Orders is suspended, so far as it is necessary, or varied to ensure [X] spends time with his mother as follows:

   (a)From the conclusion of school on the Friday of the Mother’s Day weekend until commencement of school on the Monday immediately following such weekend;

   (b)

   From 4.00pm on Christmas Day 25 December until 4.00pm on

   
   

   26 December in even numbered years;

   (c)From 4.00pm on 24 December until 4.00pm Christmas Day 25 December in odd numbered years.

8. Implementation of the times [X] is to spend with his father on alternate weekends, and Wednesday nights, and on any other occasion during school terms is to be effected by the father or his nominee known to [X] collecting [X] from his school at the commencement of the period and returning him to his school at the conclusion of the period.

9. Implementation of [X]’s time with the father on other occasions is to be effected by the father or his nominee known to [X] collecting [X] from the mother or her nominee known to [X] at McDonalds Family Restaurant at [T] and by the father or his nominee returning [X] to the mother or her nominee at the same place at the conclusion of [X]’s time with the father.

10. For the purposes of Order 9 above, the mother or her nominee known to [X] is to take [X] to McDonalds Family Restaurant at [T] at the commencement of [X]’s time with his father, and the mother or her nominee known to [X] is to collect [X] from the same place at the conclusion of the father spending time with [X].

11. Nothing in these Orders precludes the parents from agreeing in writing upon implementation occurring at a different place.

12. In the event of the mother continuing to live at [address omitted], [H], and for so long as she remains resident at those premises, the mother is to ensure that [X] is provided with independent sleeping accommodation within such premises with the provision of a bed, and the mother is restrained from sleeping in the same part of such residence in which [X] is sleeping.

13. The parent with whom [X] is living or otherwise spending time is to facilitate telephone communication for [X] with the other parent upon any occasion when [X] asks to speak with the other parent, and is to ensure [X] is given privacy during the time of any such telephone call.

14. Each parent is to advise the other as soon as possible by the best available means in the event of any of the following occurring:

    (a)[X] being seriously injured or falling seriously ill;

    (b)[X] requiring urgent medical treatment from a Doctor or Ambulance crew;

    (c)[X] being admitted to hospital.

15. Each parent is to inform the other of any change of particulars of that parent’s residential address, landline telephone number, mobile telephone number and if applicable email address and within 24 hours of any such change occurring.

16. Both parents are to authorise in writing the Principal of the school attended by [X] from time to time to supply to the other parent copies of progress reports, school reports, notices relating to pupils at such school, school letters, invitation to any carnival, sporting or social functions, notices of and invitations to parent-teacher interviews and any other notices directed to parents of children attending such school, and service of a sealed copy of these Orders upon such school is sufficient discharge of this order.

17. Each parent is at liberty to obtain all relevant medical records and to consult with [X]’s medical and dental practitioners to obtain any information he or she may require, and service of a sealed copy of these Orders upon such medical practitioner or dentist is sufficient authority for that purpose.

18. The mother is restrained from enrolling [X] in any school or extra curricular activity to occur on a Wednesday afternoon or evening, Friday afternoon or evening and any school or extra curricular activity to occur on a weekend or holiday period when [X] is due to spend time with his father pursuant to these Orders without first discussing the proposed activity and possible enrolment with the father with a view to reaching an agreement, and not to occur unless so agreed.

19. The father is restrained from enrolling [X] in any school or extra curricular activity to occur at a time when [X] is living with his mother pursuant to these Orders without first discussing the proposed activity and possible enrolment with the mother with a view to reaching an agreement, and not to occur unless so agreed.

20. Each parent is restrained from denigrating the other parent in the presence or hearing of [X] including making rude comments, making insulting comments, swearing at, shouting at and making obscene gestures and each parent is further restrained from causing or permitting any other person from engaging in such behaviour in the presence of [X].

21. Both parents are to consult with a Family Dispute Resolution Practitioner at a Family Relationship Centre or elsewhere or such other Family Consultant that may be agreed between the parents to assist with:

    (a)Resolving any dispute between them as to the terms or operation of these Orders;

    (b)Reaching agreement about any changes to be made to these Orders arising from any change in the needs or circumstances of [X], or the parents, in the event that any dispute or disagreement arises concerning such changes.

22. Each parent is restrained from making an application to the Court for variation of these Orders to take account of the matters referred to in Order 21(b) above without first having complied with Order 21 above in relation to such matters.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 2169 of 2007

MR GATES

Applicant

And

MS HARPER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents have not been able to agree upon parenting arrangements for their only child [X] born [in] 2005 (“[X]”) who was 5 ½ years of age at the time of the hearing.

2. Both parents continue to be critical of each other’s parenting of [X] and communication between them is very poor historically. A communication book has been used on some occasions.

3. The evidence establishes that the mother was angry toward the father at the time of separation in mid 2006 when she perceived the father had an affair with a woman who is now the father’s wife, leaving the mother in an extremely raw emotional state. The mother admitted openly that she did not want the father’s new partner looking after her small child.

4. The father perceived the mother as being obstructive to him maintaining a relationship with his son by continually trying to undermine the relationship and restrict [X]’s time with him. The father perceived that the mother mollycoddles [X] and inappropriately restricts his natural development and independence. The father also perceives the mother as a poor role model for [X] by not obtaining employment and securing independent accommodation.

5. The mother’s anxiety as to what occurs in the father’s household reached a climax when [X] told her that his stepbrother [A] had tickled his penis, which the father denied and said could not have occurred. The father perceived this as an invention by the mother to further restrict [X]’s relationship with him and his then new wife and family.

6. The father now seeks orders that [X] live predominantly with him and spend time with the mother and with the mother seeking orders to preserve the present arrangements, that is [X] living predominantly with her and spending time with the father.

The respective applications at the hearing

1. The father sought orders as set out in his amended initiating application filed 30 March 2010 supplemented by additional orders set out in the case outline prepared by his then Counsel, Mr Weightman.

2. Essentially, the father seeks orders that [X] live with him predominantly and spend time with his mother on alternate weekends during school terms from after school on Friday until back to school Monday morning, each Wednesday overnight during school terms until back to school the next day, half the school holidays and special occasions with a number of other practical parenting orders.

3. The mother sought orders in accordance with her amended application filed 30 April 2010.

4. Essentially, the mother seeks orders that [X] live with her, spend time with the father each alternate weekend during school terms from after school on Friday until back to school Monday morning and each Wednesday overnight, for half the school holidays, other special occasions and with a number of practical parenting orders.

5. Both parents propose equal shared parental responsibility.

Past and existing orders

1. On 24 September 2009 the Court made interim orders that [X] live with his mother and spend defined short periods of time with his father during September, October and November, broadly at weekends and overnight, together with an order for equal shared parental responsibility with further provision for the father to telephone [X] at least once a week.

2. Further interim parenting orders were made by consent on 9 November 2009 providing for continuing equal shared parental responsibility, [X] to live with his mother and spend time with his father for defined periods over the Christmas holidays, broadly one week at a time, including Christmas and each alternate weekend during the first school term, half the holidays at the end of the first school term, with alternate weekends continuing in the second school term from Friday after school until Sunday evening.

3. The matter was listed for final hearing on 5 May 2010 but not reached by mid afternoon when the matter was adjourned to 6 August 2010 for hearing with priority.

4. At the conclusion of the second day of hearing on 12 August 2010 Orders were made by consent, pending further order, that [X] spend time with his father each fortnight the father is off work on Friday, Saturday and Sunday to be returned to his school by his father on the Monday morning.

5. A further order was made that within seven days the mother was to approach the Director of Child Dispute Services at the Court to obtain a referral to a psychologist providing cognitive behaviour therapy sessions and was to attend upon such practitioner for as long as the practitioner deemed necessary with the mother to provide a copy of the family report by Mr C to her treating psychologist.

6. The Court made an order that if the father was unable to personally deliver [X] to his school then the father’s nominee was to deliver [X] to his mother at McDonald’s family restaurant at [T] at 8.00am.

Background

1. The father was 38 years of age at the time of hearing and is employed as a [omitted] performing shift work to a pattern which has been unchanged over the last 3 years and provides a discernable pattern of work[1].

   [1] See Exhibit F4

2. The mother was 41 years of age at the time of hearing and in the process of obtaining a [qualification omitted] with a private training organisation with a view to obtaining work in [omitted].

3. At the time of the hearing, the father was shortly to move into a new and recently built home at [R], a little to the north of Newcastle.

4. The mother shares accommodation with her brother, Mr H, in his home at [H] where she has lived since about May 2008.

5. The parents commenced their relationship in about 1995, commenced living together in either 1997 or 1998, were married [in] 2002 and separated in either May or June 2006. A divorce order was made on

   
   

   16 October 2007 which became effective in one month from that date.

6. [X] is the one child of their relationship.

7. The father remarried [in] 2008 to Mrs Gates whom he had known for many years, with that relationship reviving in June 2006 and with the father and Mrs Gates commencing cohabitation in December 2006 leading ultimately to their marriage.

8. [X] was 16 months of age at the time his parents separated.

9. The present Mrs Gates has two children from her previous marriage, namely [A] born [in] 1997 (“[A]”) aged thirteen years at the time of hearing and [B] born [in] 1999 (“[B]”) aged ten years at the time of hearing. [A] and [B] have lived with their mother following separation in early 1999 and see their father generally on alternate weekends and for part of the school holidays.

10. Mr and Mrs Gates have a child of their relationship, [Y] born [in] 2008 (“[Y]”), and two and a half years of age at the time of the hearing.

11. The mother has not re-partnered and on the evidence before me is not in a romantic relationship.

12. The present Mrs Gates is not engaged in employment outside the home.

13. [X] commenced his formal education at [H] Public School in 2010 where he was in Kindergarten.

14. [A] was in year 7 at [G] High School in [M] and [B] was attending [M] Public School at the time of the hearing.

15. Following separation [X] lived with his mother and spent some time with his father, broadly at weekends until December 2006 when the father and Mrs Gates started living together.

16. It is common ground on the evidence before me that [X] then spent significantly less time with his father. It is common ground that the mother had extreme difficulty in accepting the relationship between the father and Mrs Gates which led to her restricting [X]’s time with the father, conceding that she wanted Mrs Gates to have little or nothing to do with [X].

17. In about October or November 2008 the mother prevented [X] from spending time with the father, except for a few brief supervised occasions to which I will refer later in these reasons until orders were made on 24 September 2009.

18. In the meantime, the father had filed his initiating application on

    
    

    30 July 2009 seeking final orders that [X] live with the mother and that he spend time with him broadly on alternate weekends during school terms from after school Friday until 7.00pm Sunday, for half the school holidays and other special occasions.

19. On 2 September 2009 the mother filed her response seeking final orders that [X] live with her, that she have sole parental responsibility for him and that until [X] attained the age of 6 years, he spend supervised time with the father at the [omitted] Children’s Contact Centre at [omitted], and that from the age of 6 years the father spend unsupervised time from after school on Fridays to 4.00pm Sunday and on other special occasions, although it is less than clear whether that was to be each weekend or each fortnight.

The evidence

1. The father relied upon the following affidavits: 

   a)His affidavit affirmed 28 July and filed 30 July 2009;

   b)His affidavit affirmed 13 April and filed 14 April 2010;

   c)His affidavit affirmed and filed 30 April 2010;

   d)The affidavit of his wife, Mrs Gates affirmed and filed 30 April 2010;

   e)

   The affidavit of his wife, Mrs Gates affirmed 29 July and filed

   
   

   30 July 2010;

   f)

   The affidavit of his mother, Mrs G sworn 29 July and filed

   
   

   30 July 2010.

2. The mother relied upon the following affidavits:

   a)Her affidavit affirmed 1 September and filed 2 September 2009;

   b)Her affidavit affirmed and filed 30 April 2010;

3. I also had the benefit of a Family Report prepared by Mr C, a Family Consultant attached to the Newcastle Registry of the Family Court of Australia who conducted interviews on 14 April 2010.  The report was published on 21 April 2010.

4. I also had the benefit of listening to and observing the parents and the father’s present wife giving evidence both in chief, and in cross examination.

5. The paternal grandmother was not required for the purposes of cross examination.

1. I also had the benefit of listening to the evidence of Mr C who appeared in person and was cross examined by both Counsel.

2. I am satisfied that Mr C had received copies of the affidavits filed by the parties and their witnesses since the interviews.

3. I was left with the impression that both parents and the present

   
   

   Mrs Gates tried to give evidence truthfully, subject to some observations which I will make later, and that both parents love [X] very much and that each would like what is best for him.

The issues

1. It seems to me the issues are these, and which indeed were correctly indentified by Mr C in the Family Report[2]:

   a)What are the appropriate parenting arrangements for [X] and in particular should he continue to live predominantly with his mother and spend time with his father, or should he live predominantly with his father and spend time with his mother;

   b)Is the mother’s conduct as perceived by the father sufficient to amount to an inability on her part to foster and actively facilitate [X]’s relationship with his father and his present family such that [X]’s relationship with his father is being undermined and damaged so as to justify [X] living with the father and spending time with his mother;

   c)Is there justification for the mother’s perception that the father does not provide sufficiently for [X]’s optimal physical and emotional care such that [X]’s time with his father should be restricted and whether [X] should spend time with his father only when his father is at home able to care for him.

   [2] Paragraph 12 of the Family Report

The relevant law

1. I have regard to Part VII of the Family Law Act 1975 and in particular the amendments which came into being following the Family Law Amendment (Shared Parental Responsibility) Act2006. The significant sections are, and to which I must have regard, s.60CA which provides that:

   “In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration.”

2. I must consider, in determining a child's best interests, the matters set out in s.60CC. They are broken down into two primary considerations.  Firstly:

   “(2) The primary considerations 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.”

3. There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to s.60CC(4). 

4. I must also have regard to s.60B which sets out the objects of Part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

5. The relevance of the presumption of shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[3]. 

   [3] Subsection 65 DAA Family Law Act1975

6. It seems to me that there is a shift toward the Court being required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent.  It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate.  See the Full Court decision of Goode v Goode[4]. 

   [4] Goode & Goode [2006] FamCA 1346; (2006 FLC 93-286; (2007) 36 Fam LR 422

7. I have considered also the decision in Mazorski and Albright[5], another case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:

   “What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.  I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant”.

   [5] Mazorski & Albright (2007) 37 Fam LR 518; at 526

8. Section 60B (1) (a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.

9. The recent Full Court decision of McCall & Clark[6] their Honours Bryant CJ, Faulks and Boland concluded that there are three possible interpretations of Section 60CC(2)(a) finding that the preferred interpretation of the benefit to a child of a meaningful relationship is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant[7].

   [6] [2009] Fam CAFC 92; (2009) 41 Fam LR 483

   [7] Paragraph 119

10. The Full Court rejected the notion that a Court should assume there is a benefit to all children in them having a meaningful relationship with both parents, finding that if the legislature had intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[8].

    [8] Paragraph 120

11. Her Honour Justice Bennett discussed the terminology in G & C[9] finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.

    [9] G & C [2006] FamCA 994

12. The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski (supra), and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).

13. The Full Court also said[10]:

    “In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”

    [10] Paragraph 122

14. Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case. It seems to me the amending legislation provides a new focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.

The Family Report

1. I was greatly assisted by Mr C, the author of the Family Report, who was cross examined by both Counsel.

2. Mr C was not challenged by either Counsel as to the accuracy of any of the histories he obtained from each parent or the perceptions and beliefs each parent held of the other as reported by Mr C.

3. Mr C reported[11]:

   “[X] described each of his parents positively and also each of his parent’s households positively. [X] also spoke freely about school and listed several friends. [X] was not able to describe his favourite things at his mother’s home but did describe many activities at his father’s home. It is quite possible a recency effect as [X] has been spending the previous five nights with his father in accordance with the current school holiday arrangements.”

   [11] Paragraph 35 of the Family Report

4. Mr C reported[12]:

   “[X] did not know what his father was thinking or doing when [X] was at his mother’s home and did not know what his mother would be doing while [X] was at his father’s home but stated that his mother would be worried about him. [X] did not know what his mother would be worried about but simply that she would be worried.”

   [12] Paragraph 36 of the Family Report

5. Mr C reported[13] that [X] did not express any concerns or worries about any person or situation and did not appear to have the developmental maturity to express any meaningful view about hypothetical future living arrangements other than to say that he liked spending time with his mother and that he liked spending time with his father.

   [13] Paragraph 37 of the Family Report

6. Enquiries were made by Mr C of the Principal of [X]’s school who said words to the effect that [X] appeared to be coping well with kindergarten and did not appear to be having difficultly in any area.

   
   

   Ms B, [X]’s classroom teacher told Mr C that [X] was a very quiet boy who did not talk very much about his family or anything else and did not appear to have any difficulties academically, socially or emotionally.

7. In his evaluation, Mr C observed that[14]:

   “It appears as though each parent is locked into a belief about the other parent and all events are interpreted through that perspective. It is noteworthy that both parents claim that the communication book provides evidence to support their own positions.”

   [14] Paragraph 41 of the Family Report

8. After considering the perceptions by each parent of the other, Mr C reported[15]:

   “Given the positions that each parent has about the other parent it is easy to see how they each believe that they are acting appropriately and the other considers the actions to be infuriating and further ‘proof’ that the other parent is still behaving inappropriately. Ms Harper’s desire to discuss concerns about [X] with Mr Gates is interpreted by Mr Gates as Ms Harper mollycoddling [X] and trying to tell Mr Gates how to parent his child. Mr Gates’ refusal to discuss such matters because there is no basis for any concern is interpreted by Ms Harper as

   
   

   Mr Gates not being attuned to and focussed on important aspects of [X]’s physical or emotional wellbeing.”

   [15] Paragraph 44 of the Family Report

9. Mr C commented[16] as follows:

   “The situation is extremely difficult and tensions remain high as Ms Harper believes that Mr Gates failed to protect [X] from inappropriate behaviour by [A] stemming from the September 2008 allegations that [A] was touching [X]’s penis and Mr Gates believes that the entire situation was concocted by Ms Harper to prevent [X] having a relationship with Mr Gates and Mr Gates’ family. It is unlikely that either parent will shift their view in regards to that particular matter ever.”

   [16] Paragraph 45 of the Family Report

10. Mr C makes this observation[17]:

    “It is noted that despite the numerous concerns that each parent has about the other parent, they are each proposing that [X] spend significant and substantial time with that parent. [X] is not developmentally mature enough to meaningfully express any direct views to assist the parents or the Court regarding his future living arrangements. It is of concern, however, that [X] is of the belief that when [X] is in his father’s care, his mother worries. This is inappropriate and unhelpful for a five year old child.”

    [17] Paragraph 49 of the Family Report

11. Mr C recommends that the parents have equally shared parental responsibility for the long term decisions affecting [X][18] and recommends that both parents actively promote [X]’s relationship with the other parent and with the other parent’s extended family.

    [18] Paragraph 50 of the Family Report

12. Mr C suggests that it may be of assistance to the mother if she was to resume personal supportive counselling to assist her in this process, and considers that the mother may be unaware of the impact of some of her behaviours albeit there is no suggestion by Mr C that the mother has acted consciously or deliberately in this regard since September 2009.

13. Mr C recommended that the parents immediately take the opportunity to alter arrangements on an interim basis to enable [X] to spend more time with his father on those weekends when his father is not working, and by way of example, when the father is off work on the Friday, Saturday and Sunday and does not return to work until 7.00pm Monday [X] can spend Sunday night with his father with his father to take [X] to school on Monday morning[19].

    [19] Paragraph 52 of the Family Report

14. Mr C observes this would give [X] and the father and his household an opportunity to experience [X] being at his home on a school day.

15. The mother acknowledged in cross examination that she had read paragraph 52 of the Family Report and subsequently received a written request from the father’s Solicitors and telephone requests from the father’s Solicitors requesting implementation of Mr C’s recommendations as to the additional time when the father was not working.

16. The mother agreed she did not adopt the recommendation of Mr C. The mother denied the suggestion put to her that the reason for not adopting Mr C’s recommendation was that she did not want the additional time to occur and responded that she did want to do something about the recommendation. The mother said that she was reluctant to enter into any agreement because she wanted legal representation to avoid being intimidated by the father.

17. When asked how the father intimidated her, the mother said the father always wants it the way he wants it and does not consider what she would prefer. Whilst the mother conceded that she understood the Family Report, that she respected Mr C and what he said in the report, there were some things she did not agree with at the time, not necessarily that [X] should not see his father when his father is not working but that pickups and times and arrangements had to be made and she wanted legal representation for that purpose. The mother said also that she had declined the opportunity of mediation at Interrelate because she felt vulnerable and thought she may be intimidated into being pressured into something she did not want to happen for [X].

18. I find on the evidence that the mother’s explanation for not considering and agreeing to the extra time suggested by Mr C, albeit the mother was not represented at that time, is implausible.

19. The most likely explanation for the mother’s refusal to contemplate additional time for [X] with the father when he was not working is that the mother could not bring herself to perceive that this would be in [X]’s best interests. To that extent I find on the evidence the mother lacked considerable insight. I find it was no valid reason for the mother to say that she was not represented at that time, and further, it could not be said upon any valid basis that the mother was being intimidated by the father. The proceedings had commenced and the mother had filed her response when the family Report issued. It seems to me that the other most likely explanation is that the mother wanted to defer for as long as possible [X] spending additional time with his father.

20. In response to a question by Mr Graham, Counsel for the father as to the rationale behind the recommendation for the additional night on a weekend when the father was not working, Mr C said that the additional evening, particularly if it was a Sunday would allow the father to be involved in the attendance on a school day at school which he thought to be a good idea. Mr C went on to say he made these recommendations after careful consideration and was of the view that if they were accepted and implemented then that would be in [X]’s best interests. He therefore hoped that the parents would have actively considered his recommendations.

21. In response to a question from Mr Graham as to why it was inappropriate and unhelpful for [X] to believe that his mother worries when [X] is in his father’s care, Mr C said that typically this causes a child to be thinking about the wellbeing and the emotional state of their parent, whereas it will be much more appropriate, helpful and healthy for the child to be concerned for their own wellbeing. Mr C said that at the age of five children are normally and naturally very self centred which is a perfectly appropriate and healthy developmental position, but when a child needs to stop and think about the emotional state of somebody else, particularly somebody who is significant to that child such as a parent, it robs that child of the freedom to enjoy their own childhood.

22. Mr C gave careful consideration as to whether the father or the mother had caused [X] to hold this belief and concluded ultimately that on the basis that [X] had been living predominantly with his mother since he was 16 months of age and spending time with the father from time to time then it was more likely that it was the mother’s behaviour that caused this belief. Mr C considered that if such behaviour continued then it would be detrimental to [X]’s mental health and that if such behaviour on the part of the mother persisted [X] was likely to become more parentified.

23. As to sleeping arrangements in the mother’s home, she said that [X] still sleeps in a room with her in a separate bed because there is no other spare room in the house. Whilst the mother thought it feasible for separate sleeping accommodation to be made available for him and said that she would probably be able to make another room somewhere within her brother’s flat, she had not made those arrangements because of the quantity of furniture. The mother emphasised that she was trying to get her own independent accommodation and it was for that reason she had not done anything about it.

24. Mr C thought this was a very unusual arrangement and that it carries with it significant risk but that had to be considered against the circumstances under which this was occurring. Mr C considered that it would be more conducive for a child’s natural development at his age to have his own space.

25. I find on the evidence it is of concern that the mother has not addressed this matter bearing in mind she has been living with her brother in the two bedroom flat at [H] since about May 2008. It seems to me it is essential for the mother to make provision immediately for [X] to have private sleeping accommodation within the flat which may entail either [X] or the mother sleeping in a different part of the flat. There is no evidence before me of the number of other rooms or facilities and I could not be confident that until the mother obtains full time employment she will earn sufficient income to obtain independent accommodation as she has proposed. I propose to make an order accordingly.

26. It is appropriate to make such an order whether [X] is living primarily with his mother or his father.

27. In her affidavit affirmed 1 September 2009, the mother deposed to beginning to have significant concerns for [X]’s safety whilst in the care of the father in about October 2008, when [X] said to her words to the effect:

    “be sexy, I’m a sexy boy.”

28. In response to his mother’s question, [X] said that [A] had said that to him but the father deposes in paragraph 39 of his affidavit affirmed

    
    

    28 July 2009, that it was he who had made that comment to [X] when he put some gel in his hair, which he had then told the mother when she had telephoned to query why [X] was saying he was a sexy boy. The father deposes to the mother then saying words to the effect:

    “Well, I don’t know what’s going on up there, there could be paedophilia or paedophiles.”

1. The mother deposes to the whole of the contents of paragraph 39 of the father’s affidavit being correct.

2. Consequently, I find on the mother’s evidence that she made a statement to the father quoted above as to paedophilia or paedophiles. This suggests the mother either does not understand the meaning of these words or held an irrational belief and was prepared to make accusatory and inflammatory statements with no foundation what so ever.

3. The mother deposes to becoming further concerned[20] when on about Monday 24 November 2008 following [X]’s weekend with his father [X] disclosed to her that, using his own words and terms that [A] had been tickling his penis. The mother telephoned the father who was dismissive of her complaint and asserts she could hear the father’s wife screaming insulting words to her in the background.

   [20] Paragraph 30 of her affidavit affirmed 1 September 2009

4. The father deposes[21] that he received the telephone call from the mother about [X]’s statement to her and that she said words to the effect:

   “[X] told me that [A] touched him on his private parts, you are all sick and dirty people and [X] won’t be coming again.”

   [21] Paragraph 46 of his affidavit affirmed 28 July 2009

5. The mother denied saying that [X] would not be coming again but I find on the evidence that the mother unilaterally suspended the father’s time with [X] from late November 2008 under circumstances to which I will refer later in these reasons. It is the father’s case that this allegation made by the mother was completely untrue and false and was made with the sole intention of preventing [X] from spending time with him and his family.

6. Mr C said in cross examination to Mr Graham that if such allegation was made in those circumstances and was false and made for that reason it would represent a very serious form of child abuse likely to have significant negative consequences for the child into the future.

   
   

   Mr C went on to say that it also suggested that the parent who behaved in such a fashion was not able to separate their own emotional needs from the emotional needs of the child and unless the parent was accepting of that wrong doing and had made significant effort to make amends and ensure that type of situation never occurred and actively engaged in reparative work then the Court would probably need to consider very carefully how much time a child spends with the offending parent, and considering also that such offending parent may continue to fail to promote the child’s relationship with the other parent.

7. Against that, Mr C said that it was a very difficult situation where one parent believes that their child may have been at risk and that the motivation for suspension of time with the other parent may be a genuine concern for the well being of their child but it could also be used conveniently to restrict the child’s relationship with the other parent.

8. Mr C thought that if the mother was of the current belief that [X] is at risk in the company of [A] then it is likely that the mother is not going to actively promote the relationship with the father on the premise that it would place the child in the position which the mother believes to be unsafe. Mr C said that if the mother was genuine in her belief that there is an issue of safety, even though the belief may not be rationally based, then she would be acting reasonably. On the other hand if the mother did not believe there to be a genuine safety concern, then the motivation would be an extremely serious form of abuse because she would effectively be failing to promote the child’s relationship with the father for no good reason.

9. In response to questions from Mr Mooney, Counsel for the mother as to the effect upon [X] if he were to change his primary place of residence from that of the mother to the father, Mr C said that [X] had a positive and strong attachment with his father and whilst there has been some disruption in the past [X] is now moving between the mother’s household and the father’s household according to a pattern he seems to have adapted and coped with and managed well. Mr C thought that [X] would be able to cope with a change of arrangements which resulted in him spending significantly more time with his father and significantly less time with his mother if it was managed appropriately.

10. Mr C considered that given the poor communication between the parents it would make it more difficult for management of the change. Mr C considered also that it was not a sufficiently good reason to separate a child from his primary carer, given the significance of such an event if the only reason was for the child to have their own bedroom.

11. When asked by Mr Mooney as to the significance of his evidence in relation to sleeping arrangements for [X] and danger to [X], Mr C affirmed his earlier evidence that the danger is the child does not develop independently of the parent and that there is an increased danger that the child will become inappropriately aware of the emotional state of the parent because the parent does not have his own space to relax and be himself.

12. Mr C thought it would be appropriate for the mother to make an arrangement for [X] to have space outside of the mother’s bedroom in which to sleep, and if that were to occur, it would allay his concerns about [X] sleeping in the same room as the mother. In this context

    
    

    Mr C said that he did not believe that the mother had acted deliberately to expose [X] to any risk but quite to the contrary, he thought the mother was motivated and driven by a desire to nurture and love and look after and care for [X].

13. When asked by Mr Mooney as to the possibility of the mother alienating [X] from the father and whether his behaviour suggested she may be doing this, Mr C said that it was difficult to answer such a question as it was clear to him that [X] was not alienated from his father and it was his view that the mother was not deliberately attempting to harm [X] and that it was extremely likely that the mother was projecting worries that she has for herself onto [X] which was unhelpful and inappropriate.

14. Mr C concluded that it would be of assistance to the mother to better understand [X] being happy and not at danger in the father’s household if the mother has some assistance through therapeutic counselling.

15. Mr C considered there was no reason to conclude that the mother would not be able to benefit from appropriate therapeutic counselling and that cognitive behavioural therapy was probably the most appropriate. Mr C thought that it would be known well inside twelve months if the therapy was unlikely to be helpful to the mother.

16. In her second affidavit affirmed 30 April 2010[22], the mother deposed to having initial concerns at the commencement of the proceedings in 2009 about [X] spending time with the father whilst [A] was also present but also deposed:

    [22] Paragraph 50

    “I no longer have any concerns about [X] and [A] spending time together.”

17. The mother deposed to her initial concerns about [A] being caused by the father refusing to communicate with her about such concerns.

18. In cross examination by Mr Graham the mother said that she still had concerns in September or October 2009 of [X] being sexually abused, and at the time orders were made for the father to resume spending time with [X] and then said:

    “I won’t forget about it. I still believe that it had happened to him.”

19. It was put to the mother that she had deposed in paragraph 50 of her second affidavit that she no longer had any concerns about [A] and [X] spending time together and she was asked which was the truth. The mother avoided answering the question and eventually answered that she was concerned about [X]’s welfare but when pressed, could not answer as to which was the truth saying that she was confused.

20. I find on the evidence that the mother retains a view that [X]’s penis was touched by [A] and that she is unlikely to change that view. That is the very clear conclusion from her evidence in cross examination despite the passage in her affidavit.

21. However I find that the mother has a genuine belief this occurred and that she perceived the father having failed in his responsibility to protect [X] appropriately.

22. I find however on the whole of the evidence that [X] is not in any danger in the father’s household. It is appropriate that the mother receive some therapeutic counselling for the reasons given by Mr C.

Discussion

1. It is very clear on the mother’s own evidence that she experienced considerable difficulty in coming to terms with the father’s relationship with Mrs Gates and could not bring herself to concede the possibility of [X] having a developing relationship with Mrs Gates and being looked after by her in the absence of the father during any time [X] maybe spending time with his father in his household when he was otherwise at work.

2. This attitude by the mother continued until at least May 2008 when the mother was still expressing the view that she wanted Mrs Gates to have nothing to do with [X]’s pre school and could not bring herself to agree to Mrs Gates collecting [X] from pre-school if the father was unable to do so.

3. The mother asserts that some complaints she had made about [X]’s health and some minor aliments which at first she attributed to the father’s neglect of [X] or inability to look after him appropriately may not in fact have been caused by the father, although she blamed him as a way of releasing her hurt and frustrations. The mother had asserted [X] fell ill because the father’s home was dirty and unhealthy but in October 2008 when she dropped [X] off at the father’s home she declined what seemed to be an entirely appropriate invitation by

   
   

   Mrs Gates to come inside the home and see for herself to see that the home was clean and managed appropriately for the care of children.

4. This is against a background of the father denying any inappropriate care of [X] and that he looked after him carefully at all times when he was spending time with the father’s family. By October 2008, it is established on the evidence that the mother became aware that the father and Mrs Gates proposed to marry in December of that year. Whilst it is the mother’s evidence that she was aware through [X] that the father was going to marry, the mother avoided answering direct questions in cross examination about her knowledge of the event save to say that she had heard a story about it but that the father had not told her directly.

5. I am satisfied however that the mother knew that [X] was to be involved in the wedding ceremony and was required to attend a wedding practice. The mother concedes that she refused [X] spending time with the father for this purpose saying that she had made a complaint. Whilst it is less than clear on the evidence precisely when this occurred, it seems to follow the complaint by [X] to his mother of being tickled by [A] on his penis.

6. It was put to the mother in cross examination, and she denied she knew that the father had made arrangements for [X] to be available to be fitted with a suit for the wedding but I find the mother’s evidence was vague when she referred to having received a text or something like that but could not remember specifically. I find on the evidence that the mother was aware of the arrangements made by the father for [X] to be measured for a suit for the wedding.

7. Whilst it was suggested to the mother that it was not coincidental that [X] did not attend the father’s wedding or a clothing fitting beforehand and this was a deliberate act on her part, the evidence does not establish that this was a deliberate act to exclude [X] from the wedding celebrations.

8. It is not surprising that the father viewed the mother’s complaint about [X] and [A] with some suspicion given its timing.

9. The most likely explanation is that the mother could not bring herself to accept what was happening nor see any benefit for [X] in attending the wedding. She chose to avoid the issue as opposed to dealing with it. To that extent the mother lacked considerable insight in preventing [X] from attending an event which he probably anticipated with some enthusiasm.

10. It is not possible for the Court to make any finding on the available evidence as to whether [A] tickled [X] on the penis and whether, if it occurred, it was inappropriate sexual activity or no more than an innocent act of two boys playing in an exploratory manner or whether there is some other innocent explanation for what occurred. There is no suggestion by the mother that such behaviour has been repeated and there is no suggestion by the mother that the father had behaved inappropriately toward [X] at any time.

11. The mother asserts that the father was dismissive of her complaint when she telephoned him. The mother asserts that she was shocked and concerned that this had happened to [X].

12. The mother said in cross examination that having decided that [X] should not spend time with the father as a consequence of the incident she also obtained advice from lawyers, the Department of Human Services and other persons who advised her to ensure [X]’s safety.

13. I find on the evidence that the mother failed to consider or look for any other explanation as to what had occurred and in particular, whether there may have been an innocent explanation. The mother accepted at face value the statement made by [X], then three and a half years of age without exploring all of the avenues open to her to make an informed decision about whether [X] was at risk or not in the father’s household. The mother could have persisted in having a discussion with the father about what had occurred.

14. It seems to me that the most likely explanation is that even as at November 2008 the mother still had not come to terms with the father’s relationship with Mrs Gates, and the statement by [X] was yet another reason for the mother to dislike Mrs Gates thus providing a further reason for the father’s time with [X] to be restricted.

15. I do not find however on the evidence before me that the mother was malicious or that the statement attributed to [X] was not made by him. I find on the balance of probabilities that the mother genuinely believed that something had occurred that put [X] at risk but that she failed to weigh the probability or likelihood of it being an inappropriate act, if indeed it had occurred and that she failed to investigate to make an informed decision.

16. The failure by the mother to adopt that course had very significant consequences for [X]’s relationship with his father because for all intents and purposes, [X] did not see his father again until the orders were made in September 2009, with the exception of the short occasions to which I refer below.

17. However, it seems to me the father lacked some insight in how to deal with the mother’s complaint. For some time, he perceived the mother as having made unfounded and niggly complaints about [X], for example the treatment of head lice, protection from sunburn, diet and so on, but this was a much more serious complaint. The father should have realised that the mother perceived this as a very serious matter as opposed to niggly complaints and he should have engaged the mother in a constructive discussion with a view to reassuring her that whether or not it had occurred, which of course he denied, he would ensure [X] was not exposed to any possible risk.

18. The consequence of the dismissive action by the father led to the mother refusing any time.

19. The father should have realised that a complaint of this nature would give the mother considerable cause for concern.

20. The evidence establishes that neither parent had the capacity or insight to consider the complaint in a sensitive manner with a view to finding a solution whether or not the truth of the complaint was established.

21. To her credit, the mother took steps in December 2008 and February 2009 to obtaining some professional assistance for both herself and [X] following the allegation of inappropriate sexual behaviour, and in October 2009 the mother was referred by her General Practitioner to a Psychologist following a suggestion by the Court that she attend counselling to assist with any depression from which she may be suffering or any other mental health issue. The consultant Psychologist, Ms L did not find any evidence of depression but agreed with the mother to continue sessions to help her with parenting strategies and dealing with her frustrations[23].

    [23] See Exhibits M1, F6 and M2

22. The father visited [X] briefly at the mother’s home on about 22 or 24 December 2008 to give him his Christmas presents and again on 17 or 18 January 2009 on [X]’s birthday again at the mother’s home and briefly. On both occasions, the father had driven to the mother’s home, with his wife, [A] and [B] and the baby [Y] staying in the father’s car.

23. The father next saw [X] at Easter 2009 at the mother’s home for a short while, and in the mother’s presence.

24. The mother admitted in cross examination that she knew by early December 2008 that the Department of Human Services were not taking any steps in relation to the allegations made by [X] concerning [A] and readily acknowledged in cross examination that she had made no further complaint to the Department and took matters into her own hands by deciding to simply withdraw [X] from spending any time with his father, and for a period of about ten months.

25. Whilst the mother asserted in cross examination that she did this to keep [X] safe and protect him I find on the evidence that she failed to act in [X]’s best interests and failed to exercise appropriate responsibility as a parent by failing to recognise the importance of [X] maintaining a relationship with his father.

26. The mother conceded in cross examination that she is overprotective toward [X] but the evidence establishes that in so doing, the mother has failed to recognise the importance of [X] being able to learn by his own experiences to grow and develop and learn independence.

27. The mother remembered reading in the Family Report[24] that Mr C commented it was of concern that [X] is of the belief that when [X] is in his father’s care his mother worries and that this is inappropriate and unhelpful for a five year old child.

    [24] Paragraph 49

28. The mother said in cross examination that it worried her that [X] had said that, and whilst she conceded that [X] picks up on her feelings, she denied that she told him of some of the things that worried her.

29. She was unable to give any reason as to why [X] holds such belief. I find on the balance of probabilities that the mother does express her concerns to him and more likely than not has told him that she worries about him when [X] is in his father’s care. There can be no other logical explanation for [X] to hold the belief to which Mr C refers.

30. It is for the mother to think very carefully about the consequences of such behaviour and to avoid telling [X] of her worries about him.

31. The evidence establishes the father has spent time with [X] by and large in accordance with the orders made firstly on 24 September 2009 and subsequently on 9 November 2009.

Application of section 60CC and the legal principles

1. As to section 60CC I make the following findings:

   (2) The primary considerations are:

   a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

2. I find on the evidence before me that there is a very significant benefit for [X] being able to continue to enjoy and benefit from a meaningful relationship he currently has with both his parents. It is clear on the evidence before me that both parents love [X] very much and that both have much to offer him.

3. I find the observation by Mr C significant when he reports that [X] described each of his parents positively and also each of his parent’s households positively and also spoke freely about school and listed several friends[25].

   [25] Paragraph 35 of the Family Report

4. It is also significant in my view that [X] did not express any concerns or worries about any personal situation and did not appear to Mr C to have the developmental maturity to express any meaningful view about hypothetical future living arrangements other than to say that he likes spending time with his mother and that he likes spending time with his father[26].

   [26] Paragraph 37 of the Family Report

1. This evidence suggests that whilst the mother is to be criticised for her conduct during 2008 and 2009 prior to orders being made for [X] to spend time with the father in restricting such time, it seems on the face of it that [X] has not suffered any adverse affect as to his relationship with his father.

2. It seems to me on the evidence before me that [X]’s current meaningful relationship can be continued with the other parent whether he lives predominantly with the mother or predominantly with the father.

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

3. I am satisfied on the evidence before me that neither parent will willingly expose [X] to risks of this nature.

4. Whilst it could be said that the mother was neglectful of [X]’s relationship with the father from November or December 2008 and that there was a risk of psychological harm to [X] of not spending time with his father or the members of the father’s then family, the evidence does not establish this is the case.

5. The evidence establishes that the mother took necessary and appropriate immediate steps when she became aware of the allegation to obtain some professional assistance in early December 2008, and shortly afterwards to obtain some psychological assistance for herself. This falls far short of neglectful behaviour on the part of the mother in the short term. The fact that [X] is now moving between his respective homes with some ease is indicative of the mother having come to terms to some extent with what she perceives occurred.

6. Further, it is not established on the evidence that the frequency and the reasons for the mother taking [X] to Doctors amounted to emotional abuse as the father claimed. Rather, it is indicative of the mother perhaps being a little overprotective.

   (3)Additional considerations are:

   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;

7. For the reasons given by Mr C, which I accept, [X] is not of an age to be sufficiently developed and mature to express a view to which the Court could attach any weight.

   b)the nature of the relationship of the child with:

   (i)each of the child's parents; and

8. There is no doubt on the evidence before me that [X] has a fond, close and loving relationship with each of his parents. Further, I am satisfied on the evidence that both parents have much to offer him and are able to continue to ensure that he has a secure relationship.

9. The only exception is the evidence before me that [X] is of the belief that his mother worries about him when he is in his father’s care. I have referred to this earlier in these short reasons for judgment. It is to be hoped that the orders made on 12 August with the mother’s consequent referral to a psychologist will assist her not to burden [X] with her worries about his relationship with his father and not to let him perceive she may still have some worries and concerns.

10. It is for the mother to recognise that for [X] to continue to have a secure relationship with her, it is her responsibility to relieve [X] of those concerns. Equally, it is for the mother to develop some trust and faith in the father’s ability to care for [X] and look after him in the father’s household, whether such parenting is performed directly by the father or by he and his present wife together or by Mrs Gates when the father is at work. It is for the mother to come to terms with the reality that the father has re-partnered, that there are other children in the household and on the evidence before me, [X] enjoys and benefits from the time he spends in that household. There is nothing in the evidence before me to suggest that [X] does not enjoy the benefit of everything available to him in each household.

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

11. In the father’s household, it is clear on the evidence before me that [X] enjoys a good relationship with each of the other children as well as Mrs Gates whom he calls “[nickname omitted]” and that he also enjoys a good relationship with the husband’s parents who live within a short driving distance of the father’s present home.

12. Whilst the mother’s parents have predeceased her, it is clear that [X] enjoys a good relationship with her brother with whom she lives.

    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;

13. Mr Graham, Counsel for the mother submits that the valid basis of the father’s case for seeking orders that [X] live with him is that it has been very difficult, if not impossible at times for the mother to facilitate and encourage a close and continuing relationship between [X] and the father, and in support of that proposition, recites the events which have occurred and of which the mother has been the instigator to either frustrate, obstruct, restrict, limit or at the very least give qualified support for [X] spending time with his father. Mr Graham submits that nothing has changed in the sense that whilst the mother claims to have put the alleged incident involving [A] behind her she still believes it occurred and is unable to permit [X] to spend time with his father with her blessing.

14. Mr Graham also submits with some force that the mother continues to make a number of complaints about the father’s care of [X] which have no real foundation or substance and are more indicative of the mother being over protective and mollycoddling [X].

15. Mr Graham submits, again with some force that there is no prospect of the mother’s attitude toward the father changing, and that it remains embedded in the mother’s psyche that she has not been able to come to terms with being wronged by the father, as she perceives it, when he took up with Mrs Gates and with whom she alleges he was having an affair prior to separation.

16. Consequently, Mr Graham submits the mother’s failure to be able to move on and accept what has occurred and foster the relationship is indicative of continued conduct by the mother to prevent the relationship between [X] and his father from developing, and enabling [X] to progress through his normal milestones into an emotionally mature young boy and young man.

17. Mr Graham submits there is no evidence before the Court in which the Court could have some faith that the mother is likely to change.

18. I take into account each of those submissions but weigh the whole of the evidence before me that the mother has, by and large, complied with existing orders, and that [X] does not exhibit any signs of being affected adversely by the mother’s conduct in 2008 and 2009.

19. The mother has however continued to lack insight by not adopting

    
    

    Mr C’s recommendation for additional time[27] which could have commenced some time ago but by itself does not amount to sufficient evidence that the mother is discouraging [X]’s relationship with the father.

    [27] See Family Report paragraph 52

20. Against that, I am satisfied that the father, if [X] were to live with him, will ensure that [X] spends time with the mother and promotes that relationship irrespective of the concerns he continues to nurse about the mother’s behaviour and his perception that the mother continues to make unfair and untrue accusations concerning his care of [X].

    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

21. It is difficult to assess the likely affect for [X] if he were to live predominantly with his father as this would involve a considerable number of changes for him including leaving his mother with whom he has lived predominantly since separation and who is his primary carer, a change of school, likely loss of friends at school, settling into a new school and making new friends, living in his father’s home with three other children and Mrs Gates with extended care by her as opposed to his mother when the father is at work. The father is a shift worker.

22. These arrangements are untested.

23. There is a significant difference between short holiday periods living in the other parent’s home as compared with living full time with the inevitable testing of relationships.

24. It is of concern also that [X] is of the belief that his mother worries about him when he is in his father’s care. There is a risk, it seems to me that this belief is likely to be exacerbated as it is inevitable that his mother’s worries for him are likely to increase if he lives with his father.

25. It seems to me therefore that there is a considerable risk of an adverse affect upon [X] if he were to live predominantly with his father. It seems to me unlikely there would be any adverse affect if [X] continues to live predominantly with his mother but spends longer periods of time with his father as envisaged by Mr C in the Family Report. I am confident the mother will comply with the orders I make.

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

26. The evidence does not enable me to make any finding as to whether [X]’s relationship with Mr H would be affected adversely if he were to leave Mr H’s home and live predominantly with his father.

    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;

27. In essence, because of the relatively close proximity of the parents homes with the mother living in [H] and the father living in [R] which, on the evidence before me, is a journey of between forty and fifty minutes depending upon traffic conditions and the route followed, there is no significant or prohibitive practical difficulty or expense save that whether [X] is living predominantly with his father or spending time with him it will be a matter of logistics for the father to ensure that [X] is delivered to school on time or to a change over point with the mother for him to commence school on Monday morning or at other times. The same argument applies if [X] is to be collected from school, irrespective of where that is for time with his father.

28. I find, on the evidence before me, that these practical difficulties are not insurmountable and require a practical approach, which the parents have demonstrated thus far they can do.

    f) the capacity of:

    (ii) each of the child's parents;

29. I have no hesitation in finding on the evidence before me that both the mother and the father are able to provide for not only [X]’s day to day physical needs but also his emotional and intellectual needs subject to the evidence in relation to the mother being aware of and applying restraint to ensure [X] has no cause to think she is worrying about him when he is with his father, and the mother promoting [X]’s relationship with his father.

30. The complaints by the mother of the father’s lack of ability to care for [X] are not established on the evidence before me.

    (i)     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;

31. I am equally satisfied on the evidence before me that Mrs Gates is able to provide for [X]’s physical, emotional and intellectual needs, either alone or in concert with the father. I find on the evidence that

    
    

    Mrs Gates presented as a sensitive partner and parent who is particularly sensitive for the reasons to which she deposes, to some of the mother’s perceptions of what occurred at the time of separation. Mrs Gates presented as a witness well aware of the need to enable [X] to move freely between the two homes.

32. Whilst there is little direct evidence concerning the paternal grandparents, the evidence before me is such that both they and Mr H were able to provide for [X]’s day to day physical needs when such need arises.

    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;

33. [X] is described by Mr C as a boy of slight build, relaxed, and playful and who engaged well with him and who appeared to Mr C to be developmentally within normal parameters[28].

    [28] Paragraph 33 of the family report

34. I have described [X]’s perceptions earlier in these short reasons for judgment and no further observation is necessary.

35. On the evidence before me, I find that [X] has suffered from some allergies for which the mother has obtained an EpiPen in the event of a sudden allergic reaction, and in respect of which the father has also sought medical advice and obtained an EpiPen. I am satisfied on the evidence before me that both parents are aware of the need to monitor this particular aspect of his health.

    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;

36. This has no application on the evidence before me.

    i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

37. I find on the evidence before me that to some extent, the parents have failed in their responsibilities of parenthood following separation in failing to communicate at all times and constructively about [X] and not being able to reach a practical resolution of this matter now before the Court even though there have been several attempts at mediation. Further, I was informed that both parents have attended a Parenting After Separation course but I am left with the distinct impression, as indeed was observed by Mr C, that it is unlikely that either parent will shift their view in relation to the allegation concerning [X] and [A].

38. Whilst the evidence falls far short of making a finding that the parent’s relationship is intractable, it has a long way to go to become a working parenting relationship to meet [X]’s best interests. There is some hope in the sense that Mr C reports that it is pleasing both parents have discussed and agreed upon [X] participating in the soccer skills program at the University and are both committed to taking him to that each weekend. It is to be hoped that this has provided a foundation for improved communication.

39. I have referred to the parent’s attitude and responsibilities earlier in these reasons and no further finding is necessary.

40. It seems to me that if the parents are able to accept and realise that improvement of their communication is essential for [X]’s well being, and ought to provide a foundation for increasing trust and respect of each other, then [X] will see his parents in a different light and in my view will go a long way to relieving [X] of thinking about his mother worrying about him.

    j)any family violence involving the child or a member of the child's family;

41. This has no application on the evidence before me.

    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;

42. There is and never has been any apprehended violence orders between any of the parties to this matter.

    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;

43. I take this into account when formulating the orders I propose to make.

    m)any other fact or circumstance that the court thinks is relevant.

44. Whilst each party proposes specific orders in relation to [X]’s birthday and the parents’ birthdays, it is not in my view appropriate to make specific orders in relation to both of those events. Irrespective of my final decision, [X] needs stability in moving between his parents’ homes. Given the timing of [X]’s birthday in mid January and the father’s birthday shortly after Christmas and the mother’s birthday falling in late May, it is more likely than not that the parents can cater appropriately for birthday celebrations within their respective times or as close as it can be arranged. The same reasoning applies in relation to [Y], [A] and [B]. In any event, parent’s birthdays probably have little significance for children, particularly as the children grow older.

45. For the same reasons, I do not propose to make any specific order in relation to Easter. Sometimes, Easter will occur within the school holidays at the end of the first term and sometimes not. It is a case of “swings and roundabouts” with the succeeding years.

46. It is appropriate to make an order for the mother to provide independent sleeping accommodation within the home at [address omitted], [H], for so long as she continues to live there.

47. It is appropriate for the parents to be restrained from enrolling [X] in any school or extra curricular activities to occur during a time when [X] is with the other parent, unless by agreement and I will make orders accordingly.

    (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.

48. I have considered these matters at some length earlier in these reasons and no further observation is necessary, save to say that I am satisfied on the evidence before me that the father has provided appropriate financial support and that his application for [X] to live with him is not motivated by any issue concerning child support.

Section 61DA

1. In making a parenting order the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child, subject to the presumption not applying or being rebutted in the circumstances provided in the section.

2. Both parents have proposed an order for equally shared parental responsibility and I find on the whole of the evidence before me that it is appropriate to make such an order. I have some confidence that even though communication between the parents has been historically poor, they both recognise the importance of being able to make joint decisions about major matters concerning [X].

Section 65DAA

1. Consequent upon making an order for equal shared parental responsibility the court must then consider making an order for a child to spend equal time or substantial and significant time with each parent in certain circumstances.

2. The court must also consider whether the spending of equal time or substantial and significant time is in the best interests of the child and it is reasonably practicable.

3. Subsection (5) of section 65DAA defines the matters to be taken into account in determining reasonable practicability including how far apart the parents live from each other, the parents current and future capacity to implement a future arrangement for a child to spend equal time or substantial and significant time, the parents current and future capacity to communicate with each other and resolve difficulties that may arise in implementing an arrangement of such kind and the impact and arrangement of that kind will have on a child.

1. I find on the evidence before me that whether [X] is living in [H] or the Newcastle area with his mother or in [R] with his father, it is not in his best interests to spend equal time with each parent. My reasoning is there will be a significant change in [X]’s day to day life consequent upon being removed from the primary care of his mother. There is also, for the reasons I have given, the untested circumstances if he were to live predominantly with his father.

2. In my view, the risks to [X]’s present stability in imposing such an arrangement are not warranted.

3. Further, it is not reasonably practicable for [X] to spend equal time with his mother and his father as a consequence of their respective geographic localities. [X] is enrolled at a school in [H]. If he lives with his father the father proposes he attend school in [M]. It is not practical or reasonable to attend one or the other with the considerable travel involved in either case.

4. There is the further issue of the father’s employment involving extensive shift work and absence from home.

5. I do find however that it is in [X]’s best interests to spend substantial and significant time with each parent, irrespective of where he is living predominantly.

Final conclusion

1. When I compare the respective proposals and the advantages and disadvantages, my conclusion at the end of the day is that I give greater weight to [X]’s present stability living with his mother. [X] will however be able to maintain a very significant and meaningful relationship with his father and extended paternal family under the orders I propose to make. My reasoning is that when I come to consider the whole of the evidence it is not made out to the extent necessary that it is requisite for [X] to live with his father to ensure his ordinary and appropriate development. Put simply, it is not established on the evidence that the mother’s attitude toward her responsibilities as a parent has been so poor that she has denied or obstructed [X]’s relationship with his father to such an extent that a change of residence is warranted to preserve [X]’s relationship with his father.

2. It is appropriate however that I make it clear in these reasons that the mother has, in effect, a last opportunity to ensure that she adopts an appropriate attitude and is responsible toward promoting [X]’s relationship with his father. If she fails to do so, it seems to me there is a real risk that [X], as he grows older, will express a preference to spend longer periods of time with his father, and perhaps live with him if he perceives the mother makes unsubstantiated complaints about his father, endeavours to restrict the amount of time he spends with him and continues to give him grounds to think that she worries about him unnecessarily.

3. I come to this conclusion having taken into account the whole of the evidence before me and weighing the competing considerations.

4. I am conscious of the fact that the father will probably be disappointed with this decision but ask him to take into account that [X] will be able to enjoy a meaningful, constructive and enjoyable relationship with him under the orders I propose to make.

5. I find on the evidence that it is appropriate for [X] to spend alternate weekends with his father from after school on Friday until the commencement of school the following Monday morning or Tuesday morning if the Monday is a public holiday or a pupil free day. I find also that it is appropriate for [X] to spend time with his father overnight each Wednesday from after school until back to school the next day. This will ensure that [X] enjoys time with his father on some occasions when he is not working and on other occasions with other members of the father’s family if the father is working.

6. I will make orders in relation to [X] spending holiday time with the father, and make a number of practical parenting orders.

7. On the evidence before me, these orders will ensure [X]’s continuing relationship with his father and his family and in my view are in [X]’s best interests.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Coakes FM

Date:  23 February 2011