Gifford and Theis - [2010] FMCAfam 715

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GIFFORD & THEIS

[2010] FMCAfam 715

FAMILY LAW – Parenting – whether equal shared care appropriate – where parents have minimal communication – 11 year old boy.

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

Applicant:

MR GIFFORD

Respondent:

MS THEIS

File Number:

BRC 5109 of 2009

Judgment of:

Riley FM

Hearing date:

22 June 2010

Date of Last Submission:

22 June 2010

Delivered at:

Melbourne

Delivered on:

16 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr McGregor

Solicitors for the Applicant:

Biggs Fitzgerald Pike

Counsel for the Respondent:

Mr Slade-Jones

Solicitors for the Respondent:

Burchill & Horsey Lawyers

ORDERS BY CONSENT:

The father and mother have equal shared parental responsibility for [X] born [in] 1999.
That the child spend time with the parties on holidays and special days as follows –
School holidays
(a)In even numbered years, for the first half of each government gazetted school holiday period with the mother and the second half with the father.
(b)In odd numbered years, for the first half of each government gazetted school holiday period with the father and the second half with the mother.
Christmas
(c)In even numbered years from 5:00pm Christmas Eve until 5:00pm Christmas Day with the mother and from 5:00pm Christmas Day until 5:00pm Boxing Day with the father.
(d)In odd numbered years from 5:00pm Christmas Eve until 5:00pm Christmas Day with the father and from 5:00pm Christmas Day until 5:00pm Boxing Day with the mother.
Child’s Birthday
(e)In even numbered years with the father and in odd numbered years with the mother.
Mother’s Day
(f)From 9:00am until 5:00pm with the mother if the child is not otherwise in the mother’s care.
Father’s Day
(g)From 9:00am until 5:00pm with the father if the child is not otherwise in the father’s care.

Mother and Father’s Birthday
(h)Should the child not otherwise be in the care of a party on their birthday the other party will ensure that the child communicates via telephone with the party whose birthday it is, on the day of that party’s birthday.

That changeover take place at the child’s school whenever the child is at school at the time of changeover or at the home of the parent with whom the child will be after changeover is effected.
That either party is at liberty to communicate with the child via telephone when the child is in the other party’s care on Monday and Wednesday between 5:30pm and 6:00pm and in relation to such telephone communication –
(a)The calling party will call on either the landline or mobile telephone number of the party with whom the child is;
(b)The party with whom the child is will take all reasonable steps to ensure that the child is available to take the call; and
(c)The child will have privacy during the call and the call will not be interrupted by the other party.
That the parties communicate with the use of a communication book for all matters concerning the child.
That neither party be under the influence of drugs or excessive alcohol whist the child is in their care nor allow the child to remain in the company of any other person who is.
That each party by himself/herself or his/her servants or agents be restrained from exposing the child to illicit drugs.
That each parent within 14 days enrol in and complete as soon as possible a post-separation parenting program run by Relationships Australia or such other organisation as offers a similar program.
That the parties shall comply with any reasonable direction of the program co-ordinator and in particular attend and participate in the programme as requested including attending referrals to treating health professionals as recommended by the Programme Co-ordinator.
That for the purposes of the programme –
(a)A copy of these orders will be provided by the parties to the Programme Co-ordinator;
(b)The parties are at liberty to supply to the Programme Co-ordinator a copy of any Family Reports that have been prepared for these proceedings;
That the mother and father keep each other informed about their residential address and contact telephone numbers, including residential, work and mobile telephone numbers and will advise each other of any change to either their address or contact telephone numbers within three (3) days of such a change.
That each party will speak of the other party and their respective families respectfully and will not denigrate or insult the other parent or their respective families in the presence or hearing of the child nor allow any other person to do so.
That this Order acts as sufficient authority for each school attended by the child to allow either parent to undertake parent/teacher interviews and to discuss the education of the child, to forward to either parent copies of all school reports and notices concerning activities to be undertaken by the child and to permit either party to attend at school activities/events.
That the mother and father keep each other informed of any medical emergency or major illness suffered by the child that occurs while the child is in their respective care.
That this Order acts as sufficient authority for each of the child’s treating medical practitioners, specialists, dentists and other healthcare providers to discuss and supply each parent reports as to the health of the child on an on-going basis.

ORDERS

During term time, [X] spend alternate weeks with each of his parents with changeover to take place after school on Friday.
Each party ensure that, when [X] is in his or her care and participating in motorbike riding, skateboarding or any other potentially dangerous sporting activity, that he use all appropriate safety equipment, such as a helmet and knee and elbow pads.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 5109 of 2009

MR GIFFORD

Applicant

And

MS THEIS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for parenting orders in respect of [X] who was born [in] 1999. [X] is 11 years old.
[X]’s parents were in a relationship from 1996 until 21 February 2009. They lived with two older children of the mother’s, [Y], who was born [in] 1991 and who is now 18 years old, and [Z], who was born [in] 1994, and who is now 16 years old. [Y] and [Z] called [X]’s father “Dad”. During the relationship, the father worked full time as a [omitted] and, until about 2004, the mother worked in the home.
In about 2001 and on a later occasion, the father conceded that he “took out” some doors in the family home. This apparently meant that he punched holes in them. The mother also said, and the father did not effectively deny, that he drank alcohol to excess and verbally abused the mother and the children during the course of the relationship.
The father admitted that he currently drinks 12 beers a week, and sometimes six in one sitting, and less often, 12 in one sitting. The mother said that she drinks mid-strength beer but never more than six at a sitting. The father smokes half a packet of pouch of tobacco a week and the mother smokes nearly a packet of cigarettes a day.
In 2003, the mother began attending wellbeing courses on Tuesday evenings. They were run by Mr T. In 2004, the mother began working during school hours as a personal assistant for Mr T. Between 2005 and 2008, the mother worked during school hours for [omitted]. She initially worked two days per week but eventually increased to four days per week. The mother then ceased paid work. However, she continued to work in a voluntary capacity as Mr T’s personal assistant.
The father and [X] were of the view that Mr T was the mother’s boyfriend. Mr T and the mother have denied that. Mr T is 63 years old. The point was not pressed by the father’s counsel at the hearing. For the purposes of these reasons, accept the mother’s denials about this matter. That is, I accept the mother’s evidence that she and Mr T are just good friends. I also accept the mother’s concession expressed to the family report writer that Mr T stays at her house two or three nights per week because of his work commitments in her area.
The relationship between Mr T and the mother is obviously unusual. The father considers that it was the cause of his separation from the mother. The father also seems to think that Mr T is exploiting the mother, financially or emotionally or both. It may be that the mother derives considerable benefits from her relationship with Mr T. However, the mother’s relationship with Mr T seems to have cost her a relationship with the father, and jeopardised her relationship with [X].
Shortly before separation, [Y] and [Z] went to live with their biological father. They remain on good terms with [X] and his father. Since moving in with their biological father in January 2009, [Y] has seen his mother about four times and [Z] has seen her about two times.
After separation, the father remained in the family home. [X] lived with his mother at the home of the paternal grandfather and his new partner. There is some dispute about how much time the mother was spending there. Initially, the mother severely restricted [X]’s time with his father. By late March 2009, the mother agreed to [X] spending alternate weekends with his father. Eventually, the mother moved into her own house with [X].
In May 2009, the mother applied for a protection order. She said that the father had telephoned her 14 times and texted her eight times on

25 May 2009 and telephoned her more than 10 times on 26 May 2009. The mother did not take any of the calls. The father admitted to this court that he had telephoned the mother excessively at around that time.
The protection order application was resolved with the father giving undertakings that were unlimited in time to be of good behaviour towards the mother and not to contact her except for the purposes of having contact with [X] or complying with any family law orders. There is no suggestion that the father has breached that undertaking.
Both parents conceded that they had used marijuana in the past and both said that they had given it up. This issue was not pressed by counsel for either party. In the absence of any drug tests to the contrary, I accept the evidence of both parties that they are no longer using marijuana.
Both parents see psychiatrists. There was a suggestion that the mother suffers from anxiety and depression but there was no medical evidence to that effect. A psychiatric report filed by the father indicates that he originally attended a psychiatrist for depression and for assistance with giving up marijuana. The mother and father both reported that they take anti-depressants. On the material before the court, the only view that can be formed is that both parents are reasonably well psychiatrically, albeit with the benefit of treatment.
On 15 June 2009, the father filed the present application. On

4 September 2009, Federal Magistrate Wilson made interim orders, after a contested hearing, which provided for [X] to spend alternate weeks with each of his parents, with changeover on Friday after school. That order has been complied with.
On an unspecified date in 2009, it was said that the mother’s second son, [Z], confiscated a packet of white powder from some other children at school and put it in his jacket pocket. [X] wore the jacket home to the mother’s place. [Z] telephoned the mother and told her about the white powder. She took it the police station and told them that it was the father’s powder, rather than [Z]’s. The police raided the father’s home and found some utensils for marijuana use. The white powder turned out to be icing sugar.
The father attended a parenting skills program in about January this year. It was a 12 hour course spread over six weeks.
[X]’s parents since separation have had minimal communication with each other, about [X] or anything else. A communication book was utilised following a court order in September 2009. However, the father has made five entries in it and the mother only three. The mother declined to answer certain perfectly reasonable questions posed by the father in the communication book that related to aspects of [X]’s care, including a question about whether she would like to have a CD for a guitar tutoring program for [X] to use at her house.
A number of issues concerning [X]’s care and behaviour have arisen since separation that his parents should have been able to communicate about. Those issues include [X] hiding his homework.
There are differences between the parents about various aspects of [X]’s upbringing. The mother is more inclined than the father to lay down rules and expect [X] to comply with them. The mother is more concerned than the father about [X] eating healthy, unprocessed and gluten-free food. The mother is also more concerned than the father about [X]’s use of safety equipment when he participates in motor bike riding and skateboarding.
The mother is estranged from her own mother, who swore an affidavit in support of the father in this proceeding. The father also filed a number of affidavits from other people who were not cross examined. They attested to the father’s skills and warmth as a parent and criticised the mother for various things including emotional distance from her family members.
Both parties conceded through their counsel that [X] loves both of his parents and, ideally, would like to live with both of them.

Proposals

The father proposed that [X] live with each of his parents in alternate weeks, in continuation of the interim orders made on 4 September 2009. The mother proposed that [X] live with her and spend time with his father from after school Friday to before school Tuesday in alternate weeks.
However, the mother conceded in oral evidence in chief that equal shared care could work for [X] in the future if:
a)[X] was comfortable moving between houses;
b)the father stopped discussing adult issues with [X]; and
c)the differences between the parents regarding discipline, supervision and school could be worked out.
Counsel for the mother submitted that the main obstacle to equal shared care in this case was the parents’ inability to communicate with each other about [X]’s needs. Counsel for the father submitted that the evidence showed that:
a)the father was no longer involving [X] in adult issues; and
b)the mother was at least equally responsible for the difficulties in communication because, for example, she refused to respond to the father’s questions in the communication book about issues concerning [X]’s care.
[X]’s parents agreed that numerous orders, including an order for equal shared parental responsibility, should be made by consent. I consider that those proposed orders are in [X]’s best interests. Orders will be made by consent accordingly.

The family report

A family report was prepared by Mr L and dated 11 November 2009. Mr L noted the following:
9.1The subject child was presented by the mother and was observed to generally be content in her care although, as noted above, he was testing of her from time to time. However, at other times he responded promptly and happily to her suggestions and instructions and she had come well prepared, including in a physical sense with food etc, for the report process.
9.2The mother was observed to encourage the subject child to send some time with the father while she was interviewed individually. She and the child generally conversed in an age appropriate manner and he exhibited some imaginative play, at times including his mother. There were no concerns recorded at any time in relation o the mother’s interactions with [X] and she was observed to firmly and sensitively deal with his insistence about having a McDonald’s meal after the report process
9.3When observed with the father, the subject child greeted him with considerable warmth, the father cuddling him in an enthusiastic manner. They were observed to interact in a less formal way than that observed with the mother although there were no significant concerns recorded about the father blurring the interactions with peer-like responses. While there were no concerns recorded about the father’s interactions or actions when with the subject child and they were observed to share a degree of mirth from time to time, early in the observation the subject child spontaneously said that he wanted more time with his father, the indications being that he wanted the father to hear this statement.
9.4When interviewed individually, [X] presented with no significant anxiety and no reluctance to respond to the Report Writer’s enquiries. He initially spoke contentedly and positively about his school. When asked about his favourite subject, he said “science” adding “I like the way you have to think about stuff.” He also spoke happily about playing soccer during “every break…sometimes with other classes and with the grade sixers.”
9.5When asked why he though he was seeing the Report Writer, [X] said ‘I don’t know why I’m here but I think it is to figure out who I can live with or something like that.” When asked if anyone had told him what to say, [X] initially said “no, no one said what to say”; but then added “me and my dad and that’s only one sentence.” When asked what that was about, he said “me and my dad don’t like [Mr T].” When asked why, he said “I don’t know but I think he tells mum some things, he tells her the wrong things.” When asked about what, he said “he talks about my dad a lot to mum and me and he has a [M] (aged seven years) who teases me about my dad.”
9.6When asked what he liked about his father’s place, [X] said “my friends, my own room, my dog, she is having pups.” When asked if there was anything else, he said “I’ve got a Nintendo Wii and I can watch TV whenever I like, up to my bedtime.” When asked what was his bedtime, [X] said “sometimes 8:30, most of the time it’s eight o’clock.” When asked if there was anything that he didn’t like about his father’s, he definitively said “no.”
9.7When asked about what he liked about his mother’s place, [X] said “nothing pretty much, except for my room.” When the word “nothing” was reflected back to him, he said “no” and then thought for a while and said “I like my room and that’s about it.” When asked if he worried about anything, [X] said “I just don’t feel comfortable.” When asked what would make him feel more comfortable, he said “having my mates and my dog and probably my dad.”
9.8When asked if he was ever sick who he liked to look after him, [X] said “my dad.” When asked about anyone else, he said “no, just my dad.” When asked about his mother in this regard, he said “probably, about once. I pretty much rely on my dad.” When it was reflected to him that this may not have been the case when his parents lived together because his father was at work, [X] responded “no, because my mum always took over from my dad.”
9.9When asked if anyone ever hurt him, [X] said “at school a couple of times.” When asked if anyone ever hurt feelings, he said “maybe one or two at school.”
9.10When asked if he had two wishes what they would be, [X] said “probably for my mum and dad to be back together, and me having pretty much whatever I like but I don’t think that is ever going to happen.” When asked if he expected his parents to get back together, he said “no.” When asked how he knew this, he said “I don’t really know but I don’t think they are going to get back together.”
9.11When asked if his mother and father did things differently, [X] said “yeah.” When asked what was different, he said “my dad’s rules are different and the people are different. At my dad’s I pretty much know the whole neighbourhood.” When asked about his mother’s rules, he said “she’s much more meaner because she listens to [Mr T] and that’s what gets me into trouble; if I do something I’m not meant to do and I get into trouble and I have to go to time out; that’s only for babies.” When asked what should happen if he did something wrong at his mother’s, [X] said “I should just go to my room for a minute.”
9.12When asked if [Mr T] is his mother’s boyfriend, [X] said, “I don’t know but me and my dad are thinking it.” When asked what are you thinking, he said “I think they’re going out because when mum first met [Mr T] they were going out a bit, she would go out with [Mr T] but dad would want her to stay home.”
9.13When asked to explain about he and his father thinking about [Mr T] and did he and his father talk about it, [X] said “yeah, it’s pretty much like a father and son thing.”

Mr L made the following recommendations:
10.10If these parents were able to communicate in a reasonable manner, consistent with their approach to moving the subject child between them since separation in February 2009 and achieve some level of likeness in their day to day care of him, an equal shared care arrangement would be indicated, provided both parents persisted with their current treatments in respect of their personal stability issues. Furthermore, it may be the case that they will be able to achieve greater co-operation when the adversarial nature of the court process is removed through either an agreed approach between the parents or a decision of the Court.
10.11However, at this time the father will need to reflect on his involvement of the child in the dispute, conscious or otherwise, with the associated ill-effects on the mother’s relationship with the child, and take the advice and direction of the Court and his Solicitors in relation to this matter. If he cannot be trusted in this regard and this dynamic continues it may be necessary for his time with the subject child to be significantly reduced, and/or supervised.
10.12Furthermore, it will be important for him to gain a greater understanding of the demands of parenting pre-adolescent children, in particular that it is totally inappropriate to consider that a child of this age would decide on how he would maintain contact with his mother if he were to live predominately with the father. Therefore, he should immediately enrol and diligently complete a recognised parenting program.
10.13Having regard to the aforementioned concerns about the father involving the subject child in adult discussions which have led to negative attitudes from the child towards the mother, irrespective of his intent or otherwise, together with his ongoing struggle with marijuana abuse, the indications are that the subject child should live predominantly with the mother but enjoy some regular time and communication with the father, ideally such that he sees him for some period each week. This could be achieved by the subject child spending an extended weekend with the father each alternate weekend, from school Friday to school Tuesday and one overnight early in the other week, together with half school holidays and twice weekly telephone communication.
10.14It will also be important for the mother’s concerns in relation to the subject child’s engagement in activities which may involve some potential physical harm to be respected. Therefore, it may be prudent for a provision to be made such that the subject child is equipped with all necessary safety equipment when engaged in motorbike riding and/or skateboarding.
Mr L was not cross examined by either party.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. Additionally, the court must consider the matters set out in subsections (4) and (4A). I will address those considerations in order.

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

It is clear, and neither of [X]’s parents disputed, that there is a considerable benefit to [X] in [X] continuing to have a meaningful relationship with each of his parents.

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

There was some evidence of family violence in the past, as outlined above. However, there is no suggestion that it is a continuing issue, and no suggestion that abuse has ever been an issue. There are differences between [X]’s parents about how his behaviour, sporting activities and diet should be managed. However, in neither case do the differences between them rise to the level of neglect. Both parents seem to be within the normal range as parents.

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

[X] is 11 years old. In view of [X]’s age and maturity, the court should give his views considerable but not determinative weight.
The mother is reported at paragraph 3.5 of the family report as acknowledging that [X] sometimes says he wants to spend more time with his father. I understand that to mean that he wants to spend more than one week in two with his father. On the other hand, the mother also said that [X] sometimes tells her that he wishes to live with her and the father said that [X] tells him that he wishes to live with him.
Mr L does not appear to have asked [X] squarely who he wants to live with. However, [X] did say that he would feel more comfortable at his mother’s place if he could have his father there. Mr T seems to be one of the reasons that [X] feels uncomfortable at his mother’s place. [X] told Mr L that his mother was “much more meaner” than his father because “she listens to [Mr T] and that’s what gets me into trouble”: paragraph 9.11 of the report.
[X] might often tell both of his parents what he thinks they want to hear. However, the mother acknowledged that [X] sometimes tells her that he wants to spend more time with his father. I take this to be an indication of [X]’s true wishes.

Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)

[X] has a good bond with each of his parents, although he evidently finds his mother’s rules a little irksome.
The father is maintaining [X]’s relationship with his half-brothers, [Y] and [Z], and also [X]’s relationship with the maternal grandmother, from whom the mother is estranged. [X] seems to have good relationships with his other relatives. It seems that [X] does not have a good relationship with Mr T.

Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

I do not consider that the father adequately encourages and facilitates a close and continuing relationship between [X] and his mother. Mr L noted at paragraph 10.4 of his report that [X] presented as having aligned himself with the father. (This observation particularly seems to concern Mr T and the mother’s relationship with him.) The father admitted in cross-examination that he did not know what alignment means in this context and did not ask his solicitor or anyone else who might have been able to tell him. It means that the child is siding excessively and to his own detriment with one of his parents rather than regarding them both as wonderful people with whom he can enjoy a full and loving parent-child relationship.
I consider that the father’s apparently frequent and disparaging conversations with [X] about the mother’s relationship with Mr T have damaged [X]’s relationship with his mother. I also suspect that Mr T has compounded the problem by often being at the mother’s home, and by sometimes seeking to exert authority over [X].
Mr L noted at paragraph 10.5 of his report that, if the father achieved his goal of predominant care of [X], he would be content for [X] to decide the amount of time he spent with his mother. As [X] was only 10 at the time, it was not in [X]’s best interests for him to decide how much time to spend with his mother. The father should have recognised the need for [X] to have a close and continuing relationship with his mother and should have indicated to Mr L that he would encourage [X], for his own sake, to spend a good deal of time with his mother.
Most significantly, the father chose to file in this proceeding a number of affidavits sworn by friends and relations who were disparaging of the mother. The mother’s own mother swore an affidavit that was particularly savage towards the mother. Litigation encourages that sort of behaviour. However, the affidavits in this case were especially inflammatory. They reflect an attitude on the part of the father towards the mother that is inconsistent with him having the degree of respect for her, and her role as [X]’s mother, that would be necessary for him to encourage and facilitate a close and continuing relationship between [X] and his mother.
It was very telling that the father gave evidence that when [X] came home, he only ever told his father about bad things that happened at his mother’s place. It is inconceivable that [X] could only have had bad experiences at his mother’s place. The probability is that [X] simply felt that he could not tell his father about the good things that happened when he was with his mother. [X] would have got that feeling because his father would not have adequately encouraged [X] to have a continuing and close relationship with his mother.
The mother has not adequately encouraged and facilitated [X]’s relationship with his father. Immediately after separation, the mother refused to allow [X] to spend any time with his father. Later, the mother gave misleading information to the police about the white powder. This was presumably designed to get the father into trouble and make it more difficult for him to spend time with [X].
The mother has refused to communicate with the father about [X]. In a period of several months, the father has put five entries in the communication book and the mother only two. The father asked some innocuous questions in the communication book that the mother refused to answer via the communication book or otherwise. The mother’s explanation for her refusal to answer was wholly inadequate.
The mother’s refusal to communicate with [X]’s father is a strong signal to [X] that she considers the father to not be worth talking to. This is the opposite of encouraging [X] to have a close and continuing relationship with his father.
It is stating the obvious, but all children should be allowed to think that both of their parents are wonderful. They need both of their parents to reinforce the positive aspects of their other parent. [X] should feel that he can come home from his mother’s place and tell his father that he had a great time and that, for example, his mother is lovely, kind and lots of fun. [X] should be able to say these things to his father without his father feeling in any way diminished by the enjoyment [X] derives from spending time with his mother. Of course, [X] should be able to say the same sorts of things to his mother about his father.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The proposed change in [X]’s circumstances is a reduction in [X]’s time with his father and an increase in his time with his mother, from seven nights a fortnight with each to four nights a fortnight with the father and 10 nights a fortnight with the mother. There is no suggestion that [X] would be separated from anyone.
The likely effect of the proposed change is that [X]’s relationship with his father will be diminished, as a result of reduced time. His relationship with his mother might also be diminished, as a result of [X] feeling resentful at being deprived of time with his father.

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

[X]’s parents live close to each other. This factor is not an issue in this case.

Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs

In general, both parents seem capable of providing for [X]’s needs. However, both of his parents need to recognise the very important role of the other parent in [X]’s life, and foster and encourage [X]’s relationship with his other parent.
More importantly, both of [X]’s parents need to recognise that they have to work together to ensure that [X]’s sometimes challenging behaviour is appropriately managed. [X] is not far from adolescence. His parents need to be able to communicate with each other so that they at least have some idea of where he is and what he is doing. [X] should not be able to get away with telling one parent one thing and the other parent another about his whereabouts and activities.
Although [X]’s parents are no longer in a relationship, [X] needs them to parent him cooperatively, rather than competitively. That requires [X]’s parents to work out together the behaviour they expect of [X], the strategies to achieve that behaviour and the consequences if [X] falls short. To the extent that [X]’s parents are not communicating with each other about these things, and other matters concerning [X], they are not meeting his needs.

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

This factor is not significant in this case.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This factor does not apply in this case.

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

Both parents have demonstrated a good attitude to the responsibilities of parenting [X], with the exceptions that:
a)they have not recognised their responsibility to encourage and facilitate a close and continuing relationship between [X] and his other parent; and
b)they have not recognised their responsibility to communicate with each other and parent [X] cooperatively.

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

This matter has been discussed previously.

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person

This matter has been discussed previously.

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

It is notoriously stressful for parents to be involved in litigation and for children to be the subject of litigation. For that reason, it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings.

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

Other than the matters discussed elsewhere in these reasons, there are no other relevant facts or circumstances.

Section 60CC(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.

No issue was made of either parent’s obligation to maintain [X]. Otherwise, these matters have been addressed previously.

Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

The circumstances since separation have been addressed previously.

Equal shared parental responsibility

Section 61DA of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies 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.

[X]’s parents agree that they should have equal shared parental responsibility for him. That is clearly in [X]’s best interests.

Equal or substantial and significant time with each parent

Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. That section provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)          the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In terms of s.65DAA(5) of the Act, [X]’s parents live quite close to each other. [X]’s parents have been capable of implementing an equal shared care arrangement for [X] since 4 September 2009. I see no reason to doubt that they would continue to have that capacity in the future.
[X]’s parents currently have very little capacity to communicate with each other. The mother blames the father for this. She points to his verbal abuse and the two times he “took out” doors during the relationship and his inappropriate and excessive telephoning and texting over a period of two or three days in May 2009. The mother did not point to any issues with the father’s behaviour towards her in the last year.
The absence of any inappropriate behaviour by the father in the past year may be partly because [X]’s parents have not engaged with each other at all in that period. In any event, the father’s previous behaviour would no doubt have left the mother with some apprehension about what the father might be capable of if things did not go his way.
However, I do not consider that apprehension justifies the mother in not communicating with the father at all, and especially does not justify her in not responding via the communication book to the father’s perfectly innocuous questions set out in a courteous manner in the communication book.
I also note that the mother has not yet undertaken a post-separation parenting course. It seems to me that if the mother had done so, she would have already gained some insight into [X]’s fundamental need for his parents being able to communicate with each other. The father has undertaken a parenting course of some description, but it is not clear that it was directed to the particular challenges facing parents who have separated. [X]’s parents, to their credit, had consented to orders for them both to attend such a course. It will certainly be in [X]’s best interests for his parents to both attend such a course, and to participate in it with open minds.
The reality is that whether [X] spends equal time with each of his parents, or a majority of time with one of them, it is very much in [X]’s best interests that his parents are able to communicate with each other. I consider that, with the benefit of a post-separation parenting course, the conclusion of the trial and the benefit of these reasons, [X]’s parents will very soon be able to effectively communicate with each other about matters concerning [X].
I do not consider that an equal shared care arrangement would have an adverse impact on [X]. On the contrary, it would be in his best interests. It will enable him to continue to have a good relationship with both of his parents.
In terms of the mother’s particular concerns about an equal shared care arrangement, there was no particular evidence to indicate that [X] was not comfortable moving between two houses. He has been doing that since September last year. The mother said he was uncomfortable doing it, but she did not give any details of any signs of discomfort. The only indications in the family report about [X] being uncomfortable seemed to centre on Mr T.
At 11 years old, [X] is at an age where it could be expected that he would manage the transitions reasonably well. In any event, the mother’s proposal also requires him to move between two houses just as often as the father’s proposal.
It seems to me that the family report and the trial process itself assisted the father to understand that he should not be discussing adult issues with [X]. The father maintained that he had stopped discussing such issues already. I accept his claims in that regard.
As to the differences between the parents about discipline, supervision and school, these are matters that it is in [X]’s best interests that his parents work out whether the mother’s proposal or the father’s proposal is adopted. On the evidence before me, I am unable to conclude the mother’s approach is better than the father’s or vice versa. It could be that the mother is too harsh and the father is too lax, but I am unable to draw any firm conclusions on the evidence as it stands.
In his report dated 11 November 2009, which was more than six months ago, Mr L said:
10.10If these parents were able to communicate in a reasonable manner, consistent with their approach to moving the subject child between them since separation in February 2009 and achieve some level of likeness in their day to day care of him, an equal shared care arrangement would be indicated, provided both parents persisted with their current treatments in respect of their personal stability issues. Furthermore, it may be the case that they will be able to achieve greater co-operation when the adversarial nature of the court process is removed through either an agreed approach between the parents or a decision of the Court.
As noted, [X]’s parents have not yet achieved a reasonable ability to communicate with each other about issues concerning [X]. To that extent, a precondition to Mr L’s evaluation that equal shared time might be feasible has not yet eventuated.
The mother’s counsel submitted that the mother “may need a little more time and a little more evidence” to be persuaded that the father has turned a new leaf, and will be able to communicate reasonably and respectfully with the mother. However, on the evidence before me, including the father’s presentation in the witness box, I am satisfied that the main hurdle to [X]’s parents communicating with each other at the moment is the mother’s unjustified unwillingness to communicate with the father.
However, it seems to me that once the judicial process is completed, and the parties have undertaken their post separation parenting courses, it could be expected that there will be a dramatic improvement in [X]’s parents’ ability to communicate with each other. It is certainly in [X]’s best interests that his parents make every effort to communicate with each other about issues concerning [X]’s care and welfare.
In any event, for the purposes of this proceeding, the ability of [X]’s parents to communicate with each other is but one of the myriad of factors that the court must weigh up in reaching a decision about what orders would be in [X]’s best interests. It would be entirely unacceptable for the court to be held to ransom, as it were, by a parent who refused unjustifiably to communicate with the other parent for no reason other than to gain an advantage in the proceedings.
The mother’s counsel submitted that [X] “needs to know where he lives”, and that there is a big difference between four nights a fortnight, as the mother proposed, and seven nights a fortnight, as the father proposed. It seems to me that, at [X]’s age, he will not have any difficulty knowing where he lives, if he spends equal time with each of his parents.
Moreover, I consider that [X] would suffer considerably if he were not allowed to spend at least half of his time with his father. From the family report, it is clear that [X] regards his father as his chief source of emotional and physical support. [X] also regards Mr T, who spends a good deal of time at his mother’s house, and Mr T’s son, [M], as difficulties in his life. It is appropriate to give some weight to [X]’s preferences and perceptions.
I also note, as counsel for the father emphasised, the objects of Part VII of the Act include in s.60B(1)(a) the object of:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child ….
All in all, I consider that it is in [X]’s best interests that he continue to spend alternate weeks with each of his parents. There will be an order accordingly.
Additionally, I note that Mr L recommended that there be an order that [X] be “equipped with all necessary safety equipment when engaged in motorbike riding and/or skateboarding.” It is obviously in [X]’s best interests that he be as safe as possible when participating in any potentially dangerous activities. There will be an order in accordance with Mr L’ recommendation.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:

Date: