Hailes & King
[2008] FMCAfam 102
•15 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAILES & KING | [2008] FMCAfam 102 |
| FAMILY LAW – Parenting orders. |
| Family Law Act 1975, ss.60B, 60CA, 60CC(2), 60CC(3), 60CC(3)(a), (b), (ca), (d), (e), (f), (g), (i), 4, 4A, 60CG, 61DA, 64B, 65D, 65AB, 65DAB |
| Goode & Goode (2006) FLC 93-286 KML & RAE (2006) FMCAfam 528 H & H (2003) FLC 93-168 |
| Applicant: | MR HAILES |
| Respondent: | MS KING |
| File Number: | BRC 3241 of 2007 |
| Judgment of: | Purdon-Sully FM |
| Hearing dates: | 11 & 12 December 2007 |
| Date of Last Submission: | 12 December 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 15 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms McDiarmid |
| Solicitors for the Applicant: | Thynne & Macartney |
| Counsel for the Respondent: | Mr McGregor |
| Solicitors for the Respondent: | Mitchell Lawyers |
ORDERS
That all previous Orders be discharged.
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the child, S, born in 2004.
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)they shall inform the other parent about the decision to be made;
(b)they shall consult with each other on terms that they agree;
(c)they shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 2:
(a)the Mother shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with her;
(b)the Father shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with him.
Exchange of Information
That the Mother and Father shall:
(a)keep the other parent informed within 48 hours of any change to their residential address and landline and mobile contact telephone numbers;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treats the child this Order being authority for those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child, this Order being authority for any treating medical practitioner to release the child’s medical information to the other parent.
That the parents authorise, by this Order, any day care centre or school attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Time with the parents
That the child is to live with, spend time with and/or communicate with the Mother and Father as agreed and if they fail to agree then as follows.
That the child shall live with the Father:
(a)Until the child commences school in 2009:
(i)each alternate week from 4.00pm Thursday to 5.00pm Sunday commencing 28 February 2008 until the commencement of any school holiday period;
(ii)
each other week from Friday at 9.30am commencing
22 February 2008 until after the child’s ballet classes and if the child is not attending ballet that day then until 4.30pm;
(b)After the child commences school in 2009:
(i)each alternate week from after school on Thursday to the commencement of school on Monday until the commencement of any school holiday period;
(ii)each other week from after school on Thursday to the commencement of school on Friday;
(c)this Order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.
That otherwise, the child shall live with the Mother during school term.
That the child shall spend time/live with her parents for school holiday periods as follows:
(i)the first half of the June/July and September/October school holidays with the Father and the second half with the Mother;
(ii)the first half of the Christmas school holiday periods in even numbered years and the second half of the Christmas school holidays in odd numbered years with the Father;
(iii)the first half of the Christmas school holiday periods in odd numbered years and the second half of the Christmas school holiday periods in even numbered years with the Mother;
(iv)the first half of the Easter school holidays in odd numbered years and the second half of the Easter school holiday periods in even numbered years with the Father;
(v)the first half of the Easter school holidays in even numbered years and the second half of the Easter school holiday periods in odd numbered years with the Mother.
(b)for the purpose of these Orders, the school holiday time shall commence:
(i)when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(ii)when a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when contact shall end at 9:00am on the day the school term commences;
(iii)school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.
That in the event that in any year both parents are on the Gold Coast on any of Christmas Day, the child’s birthday and between Good Friday and Easter Monday the child shall spend time with the Father and Mother on Christmas Day, on the child’s birthday and from Good Friday to Easter Monday at such times as may be agreed.
That the child shall further spend time with the Father and Mother on the following special occasions:
(a)on Father’s Day (if a non-contact week-end) from 9.00am until 6.00pm with the Father to be responsible to collect and return the child;
(b)on Mother’s Day (if a non contact weekend) from 9.00am until 6.00pm with the Mother to be responsible to collect and return the child;
(c)on the Father’s and Mother’s birthdays as may be agreed.
That the child shall communicate with her parents on the telephone as follows:
(a)at such times as the child reasonably requests; and
(b)the parent with whom the child is not living shall be at liberty to telephone at all reasonable times and in relation to such communication each parent shall:
(i)ensure that the child is available to receive the telephone call;
(ii)ensure that the child has privacy during the conversation.
Collection and Delivery
That changeovers shall take place as follows:
(a)when the child attends school changeovers shall take place at school;
(b)if the child is not attending school changeovers shall take place as follows:
(i)the child shall be collected by the Father or his nominee from the Mother or her nominee at the commencement of his time with the child at the Mother’s home or other agreed place;
(ii)the child shall be collected by the Mother or her nominee from the Father or his nominee at the conclusion of his time with the child at the Father’s home or other agreed place.
That each parent shall deliver and return any clothing, school supplies and belongings of the child.
Education
That the child attend the [M] College for both her primary and secondary school education.
Religion
That the child be raised in the Roman Catholic faith and that the Mother and Father promote the child’s religious observance required by members of that faith.
Extra-Curricular Activities
(19)That the child be permitted to continue her weekly swimming and ballet lessons unless the parents otherwise agree.
Specific Issues
That the parents (when the child is in their care) save in cases of emergency and unless there is agreement between the parents ensure that the child’s medical consultations take place at the [E] Medical Centre at [R] in the State of Queensland.
That the parents shall not (when the child is in their care):
(a)physically discipline the child;
(b)remove the child from the Gold Coast area for a holiday unless the other parent is informed and without providing to the other parent details of date of departure and return and the address and contact details for the child whilst away.
Primary Dispute Resolution
That the parents jointly engage Ms Robyn Wileman or such other suitable person as may be agreed and that the parents use their best endeavours to encourage their respective partners to participate with them in joint or separate counselling as may be advised by
Ms Wileman, the costs of such counselling to be shared equally, to assist them with the following:
(a)any unresolved relationship issues between the parents and/or either of the parents and their respective partners;
(b)how to develop a functioning co-parenting model in the child’s interests;
(c)the damaging effects of parental conflict on children;
(d)how to improve their communication with each other;
(e)how to develop and maintain a respectful relationship;
(f)how to improve their dispute resolution skills;
(g)any other matters identified by Ms Wileman.
That Ms Wileman or such other agreed counsellor be provided with a copy of the reports of Ms Clarke together with a copy of these Orders and Reasons for Judgement.
IT IS NOTED that publication of this judgment under the pseudonym Hailes & King is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 3241 of 2007
| MR HAILES |
Applicant
And
| MS KING |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents in these proceedings are not able to agree on the future parenting arrangements for their child S born in 2004.
S, who is described as “a most delightful bright little girl who actively explores and enjoys her world” [1] is the much loved child of a brief relationship between her parents. Her parents did not cohabit. S was born after their relationship terminated.
[1] Para 135 of Report of Ms Lynn Clarke dated 10 June 2007
Whilst the parents were both raised in country New South Wales and pursued their relationship following the breakdown of their marriages, there the commonality between them ends, save, of course, for their love for S. They are very different people, with different attitudes, personalities and life experiences. This is reflected in their parenting styles.
For the first few years of S’s life, her parents were able to effectively co-parent notwithstanding these differences. Towards the end of 2006 however things went seriously haywire. It is unlikely that there was one particular trigger. It appears that up until the first half of 2006 the father was engaged in protracted parenting proceedings with his second wife, a Ms S, involving their two children. In about April 2006 the relationship between the father’s current wife, Ms H, and the mother in these proceedings broke down. This had not repaired by trial. There were also a range of other disputes including at least two complaints by Ms H to the Department of Child Safety involving the mother’s alleged neglect of S.
By the end of 2006 the relationship between the parents had also broken down. The father was seeking more time with S and the mother as unable to agree with his parenting proposal. Thereafter the father took a path, by then familiar to him, leading to litigation throughout 2007.
It is difficult to understand why, following the receipt of the report of Ms Clarke, the court appointed expert, the parties did not pause to reflect and seek to immediately engage in the therapeutic intervention recommended by her. I accept a meeting between the parties and
Ms King’s husband took place before trial however given the history and personalties involved that was doomed to failure.
The amendments to the Family Law Act 1975 which were ushered in by the Family Law Amendment (Shared Parental Responsibility) Act 2006 were underpinned by a suite of reforms that were intended to assist families in the resolution of parenting disputes in a particular way, namely through non-court processes, designed to promote children’s interests and parental responsibility. The damaging effects on children of ongoing parental conflict are well known. This conflict can be fuelled by litigation that can often redirect parental focus away from what each parent can positively contribute to their co-parenting relationship.
Unfortunately, it seems to me, and not withstanding the cultural change the amendments sought to bring about, there remains an insufficient focus by parents on resolving their disputes through the holistic dispute resolution processes that exist in support of the objects of Part VII of the Act. Litigants will present varying views on how a child’s best interests are to be promoted. They are not promoted by ongoing parental conflict, by parents who have dysfunctional patterns of communication and by parents who are unable to develop a cooperative parenting relationship or address unresolved relationship issues that cause conflict.
Mr Hailes and Ms King are at a cross roads. Their challenge, it seems to me, is to refocus their time and their considerable talents and energy, not on perceived parental deficits but on what they each can positively bring to their co-parenting of S. They both have much to contribute in this regard.
The Father’s Proposal
The parenting orders sought by the father are set out in the written submissions of Ms McDiarmid dated 12 December 2007.
The effect of the father’s proposal is that S’s time in her father’s household would incrementally increase as follows:
(a)From February 2008 each alternate week from after swimming or 4.00pm Wednesday to 5.00pm Sunday;
(b)From May 2008 each alternate week from after swimming or 4.00pm Wednesday until 5.00pm Monday;
(c)From September 2008 each alternate week from after swimming or 4.00pm Wednesday to 5.00pm Tuesday;
(d)From the commencement of school 2009 week about with a handover on Monday.
The father seeks that S attend the [P] Primary School on the Gold Coast at the start of her formal schooling until the completion of her primary education.
The father also now seeks an order that the parties engage in counselling with Ms Wileman on a specified basis.
The Mother’s Proposal
The orders sought by the mother are particularised in her Amended Response dated the 3rd September 2007.
The effect of the mother’s proposal is that S will live with her and have significant time with her father until the 20th December 2008 from 4pm Thursday to 5pm Sunday each alternate weekend and then from the 20th December 2008 that he should have any further additional time that may be recommended by Ms Clarke, the court appointed expert. The mother seeks a further order that S attend the [M] College Primary School and subsequently [M] College Secondary School and that S be brought up in the Catholic faith. She also seeks an order that S not be taken by her father to his place of work without her consent and that the child attend upon the [E] Medical Centre at [R] as required except in the case of an emergency.
The mother seeks a further order that the parties attend upon Ms Robyn Wileman and a parenting course as agreed or as recommended by
Ms Clarke for the purpose of obtaining assistance in developing a functional co-parenting relationship.
Background Facts
I have accepted and taken into account the following facts.
The mother is aged 39 years having been born in 1968. She enjoys good health. She is in part time employment as a call centre operator. Her hours of work are from 7.30am until 1.30pm. She has the option to work on a Saturday morning once a month if she chooses and she has been doing this to pay for her legal fees.
The mother remarried in 2006. Her husband, Mr K, is in full time employment as a shop fitter however he appears to finish work at 3.30pm. They both reside in a home at [R] owned by the mother’s parents who reside in a flat on the property. Whilst this is not a permanent arrangement, as the mother and her husband are saving to buy a house, it is likely that this will be their home for a few years.
The mother and her husband have been trying to start a family of their own. The mother has suffered two miscarriages.
The father is aged 47 years having been born in 1960. He enjoys good health. He is employed as a manager at a business owned by his wife. Ms H works as a healthcare professional two days a week. She also works in this business.[2] The father’s hours of work are flexible and enable him to accommodate his parenting role.[3] He resides at [G] in a home that he owns.
[2] Para 15 affidavit of Ms H filed 22 October 2007
[3] Para 21 father’s affidavit filed 16 March 2007
The mother and father commenced a relationship in about February 2003. Their relationship concluded in June 2003. They did not cohabit.
The mother was previously married at age 18 years. There are four children from that marriage, three boys aged 20, 15 and 11 years and a daughter aged 17 years. The eldest son and the daughter are working and leading independent lives. Although the two younger boys (and their siblings) lived initially with their mother they now live with their father in New South Wales. The mother spends time with these boys during the school holidays.
The father was also previously married. He has two children from a pervious marriage, a boy aged 12 years and a girl aged 10 years. Whilst he shared the children’s care with Ms S following their separation, when she moved to [P] in 2006 he assumed their full time care. They spend time with their mother during their school holidays.
Parenting Arrangements
Following S’s birth she lived predominately with her mother and spent time with her father.
From February 2004 the father commenced to spend time with S at least weekly at either his or the mother’s home for between one and two hours. In July 2004 this increased to between 2 and 3 hours each week. From January 2006 S began to spend time with the father each alternate weekend from Friday afternoon to Sunday at 5pm and each alternate Sunday. [4]
[4] Para 8 of father’s affidavit filed 16 March 2007; Chronology page 293 of Court Book
In September 2006 S also spent a week’s holiday with the father and his family at Lindeman Island and in December 2006 she spent
2 weeks with the father and his family on a camping holiday and visiting Victoria.
On the 8th January 2007 the father’s solicitors wrote to the mother requesting that the father have more time with S.[5] On the 27th February 2007 they attended counselling at Relationships Australia. No agreement was reached. On the 16th March 2007 the father filed his current proceedings seeking on a final basis equal time in the form of a week about arrangement.
[5] Annexure GPH1 of father’s affidavit filed 16 March 2007
At Easter 2007 S spent half of her school holiday periods with the father visiting the father’s brother and his family in Mackay.
In the June/July school holidays 2007 S spent half of the school holidays with the father.
In September 2007, pursuant to court order, S began to spend time with the father from Thursday morning to Sunday afternoon each alternate week and in the September 2007 school holidays S spent time with her father for the second half of the school holiday period.
In October 2007, again pursuant to court order, S commenced to spend time with her father from Wednesday afternoon to Sunday evening each alternate week.
Current Arrangements with the Mother
The mother sets out in paragraphs 11 and 12 of her affidavit filed on
22 October 2007the current arrangements for S’s care.
S is involved in swimming lessons on a Wednesday and ballet classes on a Friday afternoon at 3.30pm.
S attends the [R] Childcare centre at [R] for one day a week on a Tuesday.
The parties are in dispute in relation to S’s schooling with the father proposing that she attend the [P] School on the Gold Coast from the start of her formal education until the completion of her education, that school being in close proximity to his home and a school attended by his two older children. The mother proposes that S attend [M] College, a Catholic educational facility, in close proximity to her home.
When the mother is at work S is cared for by her maternal grandparents, except on Tuesdays when she attends day care.
Current Arrangements with the Father
The father sets out in his affidavit sworn on the 19th October 2007 and filed in these proceedings on the 22nd October 2007, in particular paragraphs 18 to 25 of his affidavit, the current arrangements for S when S is in his care.
Proposed Changes to those Arrangements by the Mother
The mother proposes that S attend the [R] Childcare centre at [R] for 2 days a week in 2008.
Should the mother fall pregnant then she proposes to spend more time at home following the child’s birth however at some future time she will return to some form of paid work.
Proposed Changes to those Arrangements by the Father
The father proposes a week about arrangement from January 2009 with an incremental increase in his time until 2009 on the basis that it will be less disruptive to S’s parenting routine and that it will enable him from 2009 to play an equal role with the mother in raising S.
He agrees with the mother’s proposal that S attend day care two days a week in 2008.[6]
[6] Para 37 Father’s affidavit filed 30 October 2007
Court Proceedings
On the 16th March 2007 the father filed an Application for parenting orders seeking in essence equal shared responsibility for S and a week about shared care regime to commence in 2009, some specific issue orders and an order that S attend the [P] Primary School.
On the 27th April 2007 the mother filed a Response document
On the 4th June 2007 the mother and father were interviewed by
Ms Clarke.
On the 10th June 2007 the family report prepared by Ms Clarke was completed. It was released on 13 June 2007 (“the first report”).
Ms Clarke recommended that S spend time with her father as follows:
(a)Thursday afternoon to Sunday afternoon each alternate weekend and during the day on the alternate Friday;
(b)From the commencement of school from after school on Thursday to the commencement of school on Monday each alternate week and in the other week from after school on Thursday to the commencement of school on Friday;
(c)That the parents engage in ongoing defined counselling and complete a parenting program; and
(d)That in the event the parents develop a cooperative parenting relationship and/or live in close geographical proximity then S’s care regime be reviewed.
Her recommendations remained unchanged in her second report released on 10 December 2007(“the second report”).
On the 18th June 2007 interim orders were made by Federal Magistrate Wilson that provided an increased regime of parenting time between the father and the child which at trial was from Wednesday afternoon until Sunday each alternate week and for half of the school holidays.
On the 6th November 2007 Federal Magistrate Wilson listed the matter for trial.
The father filed an amended parenting Application on 3 December 2007 wherein he continued to seek a week about parenting regime however he sought that this regime commence in 2008, not 2009. He sought some varied holiday and special day time. He says that whilst his initial application sought that an equal time parenting regime commence from January 2009 S’s “development and increasing maturity, and the enjoyment she gets when she spends time with me and her half siblings have caused me to reconsider and I now think it is in S’s best interest to spend an equal amount of time in my home and her mother’s home”.[7]
[7] Para 13 father’s affidavit filed 22 October 2007
At the conclusion of the trial however the father varied his position seeking a graduated introduction to the week about regime with that regime to again commence in January 2009.
The mother filed an amended Response on 6 December 2007 seeking further specific issue orders but otherwise orders in terms of
Ms Clarke’s recommendations save she did not seek an order that the father spend time with S on an alternate Friday. She sought a review by Ms Clarke at the end of 2008. That remained the mother’s position at trial, save that her Counsel, Mr McGregor, conceded in oral submissions, that he could not argue against Ms Clarke’s recommendations that S spend time with her father on alternate Fridays.
Legal Principles
The principles governing the court’s determination in this matter are set out in the Family Law Act 1975 (“the Act”).
Section 65D of the Act subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”) gives the court power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the child as my paramount consideration.
In determining what is in the best interests of the child I must consider the matters set out in s.60CC(2) the “primary considerations” and s.60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, family neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and as a note to s.60CC indicates are consistent with the first two “objects” of Part VII, as stated in s.60B that the best interests of children are met by ensuring that they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The Court must also take into account insofar as they are relevant the “additional considerations” set out in s.60CC(3) and must also consider the extent to which each parent has fulfilled his or her parenting responsibilities and has facilitated the other parent in fulfilling their parenting responsibilities (subsections 4 and 4A).
I must ensure that any order that I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
Evidence relied upon by the parties
The father in his case gave evidence and was cross examined. He called as a witness in his case his wife, Ms H.
The mother in her case gave evidence and was cross examined. She called as witnesses the following:
a)Mr K, her husband;
b)Mr and Mrs R, her parents; and
c)Ms S.
Ms Clarke gave evidence and was cross examined.
I have read the material in the Court Book prepared by the father’s lawyers. I was also asked to read Ms Clarke’s second report which was not included in the Court Book.
There are a number of factual disputes between the parties. I do not propose to make any general comments about the credibility of either of the parties or their witnesses. Insofar as I need to make findings of fact I will make any comments I need to make on credit during the course of my discussion about the matters relevant to my considerations.
I accept that Ms Clarke, the family report writer, has expressed her own views and those views were held by her. I also accept that in giving her opinion, she relied upon the information and facts as set out in her first and second reports.
Application of Law to the Circumstances of the Case
The issues are:
(a)The time S should spend with each parent;
(b)S’s attachments in regard to her relationships with her parents;
(c)Whether or not S’s anxiety/distress as reported by the mother exists and if so, whether it is as a result of an insecure attachment to her mother or some other factor(s) and the impact on that on her in the context of the father’s proposal for extended time;
(d)The nature of the parties co-parenting relationship, and whether their relationship can support the parenting regimes proposed by each of them;
(e)Whether the mother has been neglectful in her care of S or has exposed S to an unacceptable level of risk in her household by reason of neglect and/or whether she had exposed S to psychological harm whilst in her care;
(f)The school S should attend.
(g)Whether S should be able to attend her father’s place of work.
(h)Whether I should make the other specific issue orders sought by the parties.
I must consider the application of the legal principles in the circumstances of this case namely the background facts and any findings I make in determining what parenting orders are most likely to promote S’s best interests
I must take into account all the relevant matters prescribed in s.60CC.
Primary Considerations
The primary considerations are:
a)The benefit of the child 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.
My conclusions as to these considerations are, in summary:
a)It is important, and in the interests of S, that she have a meaningful relationship with both her mother and father.
b)There is no need to protect S from being exposed to the risk of family violence or neglect. There is a need to protect S from being exposed to the risk of psychological harm arising from her parent’s dysfunctional relationship and continued conflict.
My reasons for reaching those conclusions are as follows.
In relation to the first primary consideration, both parties concede, correctly, that it is important and in the child’s interests to have a meaningful relationship with the other parent. They have both had a committed involvement as parents in S’s life. It is Ms Clarke’s opinion, with which I agree, that S is loved and special in both her parent’s households.[8]
[8] Para 99 of Ms Clarke’s first report
In relation to the second primary consideration whilst the father and his wife were of the view that S was at risk in the mother’s household because of the mother’s neglect and whilst the mother was cross examined at length on particular incidents of alleged neglect, I do not find that the mother was neglectful or that S was exposed to an unacceptable level of risk in her household by reason of neglect.
Counsel for the father further submitted that it may be that S is exposed to psychological harm in her mother’s care given the mother’s level of anxiety and the uncertain impact this has on S and that further, the mother has made parenting decisions without proper regard to their impact on S, particularly her decision to allow S to view the dead body of her miscarried baby which may have caused S psychological harm.[9]
[9] page 7 Father’s written submissions
In relation to the father’s complaints of general neglect he asserted that the mother was neglectful in her care of the child in that she had on several occasions arrived at his home tired or, sometimes with a saturated nappy when she was wearing nappies or with her seat belt not fastened or that S had told him that she was left in the car unattended whilst the mother was shopping.[10]
[10] Paras 45 to 47 and 53 of father’s affidavit filed 16 March 2007
Further he said that the mother was neglectful as a result of the child being injured:
(a)by a glue gun;
(b)by falling over when wrapped in a towel by the mother’s husband, Mr K, after the child had been swimming;
(c)by falling when at her mother’s home whilst a granny flat was being constructed; and
(d)by being injured when hit in the head by an exercise weight then being used by the mother’s daughter.
The father’s wife made two complaints to the Department of Child Safety arising out of these incidents. She gave evidence, as did the father, that she was required to make a formal complaint as she was a registered nurse and had a statutory obligation to report incidents of child abuse and/or child neglect. However her legal obligation to report is only if she holds a reasonable suspicion of child abuse and neglect.[11] I find that in relation to each incident complained of that Ms H could not reasonably form a suspicion of abuse or neglect. She was prepared to place the worst complexion on these incidents. Her first complaint was made in 2005, at a time, when on her evidence, she was having weekly communication with the mother and could have satisfied herself of any concerns by speaking to the mother directly. Further, despite the father’s belief that the bump on the head incident had been reported to the Department of Child Safety by the Charge Nurse at the treating hospital, he took no steps at that time, given his other stated general concerns about S’s care, to seek any variation to the parenting arrangement then in place.
[11] Annexure 11, Father’s affidavit filed 30 October 2007
Neither the father nor Ms H was prepared to concede, even at trial, some time after these events, when they both would have had time to reflect on the incidents and their response to those, that they had, in short, over-reacted. The father maintained his view, at trial, that the mother was neglectful and not looking after S properly. He told
Ms Clarke that S was at risk in the mother’s care.[12] That remained his view. This was notwithstanding his evidence, again at trial, that he had no reason to doubt the mother’s explanation for the injuries.
[12] Para 67 of Ms Clarke’s first report
Counsel for the father submitted that it reflects poorly on the father and his wife to raise these issues both with the Department of Child Safety and in these proceedings in circumstances where the mother brought each of the incidents to the father’s attention, where she provided an explanation for each to the father and where the father did not file a Notice of Abuse in these proceedings and where he seeks an equal time parenting order.[13] I agree.
[13] page 3 Mother’s Outline of Case
On any view, the four incidents complained of were unfortunate childhood accidents. It displays, at best, a level of expectation on the father’s part of an unreasonably high level of care by the mother and at worst, a preparedness to allow S to be exposed, without reasonable cause, to government investigation, including possible departmental or police interview of the child.
I find that the injuries to S did not arise as a result of the mother being neglectful of the child. I further find that S is not at risk in her mother’s care by reason of neglect.
In relation to S’s exposure to psychological harm, the mother reported to Ms Clarke that she suffered some anxiety from time to time.[14]
Ms Clarke’s evidence was that the mother told her that she was coping and that she did not present to her as being unduly anxious during her interviews. My observations of the mother in giving her evidence accord with Ms Clarke’s view that the mother does not present as an overly anxious person.
[14] Para 16 of Ms Clarke’s first report
Further, whilst Ms Clarke accepted that continuing anxiousness or significant anxiety on the part of the mother could be an explanation for S’s reported anxiety and a factor in flawed attachment, her professional opinion on the origins of S’s anxiety in separating from her mother was based on S’s early history, her historical and current symptoms and on Ms Clarke’s own observations in the interviews which she detailed in her reports.
The evidence from the mother, which I accept, is that S became clingy and distressed at times when she transferring into the care of her father; that she was bedwetting and seeking increased comfort on returning to her mother’s care.[15] Ms Clarke’s view was that there are verbal and non verbal indicators and behavioural indicators that S was experiencing some distress which she details in her second report.[16] Her professional assessment is that S is suffering a degree of attachment anxiety. In her view S needs to be provided with an opportunity to heal if her psychological health is not to be impaired. The father does not accept Ms Clarke’s assessment. He outlines the basis for this on page 3 of his written submissions.
[15] Para 26 mother’s affidavit filed 22 October 2007
[16] Para 50 Ms Clarke’s second report
I found Ms Clarke to be an impressive witness. Her evidence was tested under expert and probing cross examination by the father’s Counsel, Ms McDiarmid. Her evidence and the basis upon which she formed the views expressed in her reports remained however unshaken. Her reports were thorough and considered in their approach. Further her observations of the parties’ personalities and attitude to parenting generally accord with my own observations of them at trial.
I accept Ms Clarke’s diagnosis and find that it is more probable than not that S is suffering a degree of separation anxiety.
Whilst Ms Clarke acknowledged the possibility that increased anxiety on the part of the mother as a result of the legal proceedings may impact upon S’s emotional well being and behaviour, most litigants experience some anxiety because of litigation. The evidence does not lead me to conclude that S’s wellbeing in her mother’s household has been unduly compromised by reason of her mother’s reported anxiety arising from her life stressors, past or present, including her recent miscarriages or her parenting style.[17] Nor am I satisfied that S’s separation anxiety has been over emphasised by Ms Clarke.
[17] Para 131 of Ms Clarke’s first report
Whilst the mother may be open to some criticism for not first discussing with the father whether she should permit S to view her miscarried baby, there is no evidence before me to suggest that S was exposed to psychological harm as a result of this or that there was a casual connection in whole or in part between this incident and S’s anxious behaviour.
I find on the evidence that unless the mother and father are able to proactively develop a cooperative parenting relationship then S’s psychological wellbeing may be compromised and that she is at risk of psychological harm arising from her parents ongoing conflict and dysfunctional relationship. I say this for the following reasons.
The parents are unable to agree on significant matters to do with S’s care. Their relationship is highly dysfunctional. They are in dispute on a range of significant matters to do with S’s care. Their primary tool of communication is a communication book and lawyers. The father’s wife and the mother have both in the past involved government authorities to deal with issues in dispute. There has been a serious breakdown in communication between the mother and Ms H which if unrepaired is likely also to negatively impact upon S’s psychological wellbeing.
I am entitled to take judicial notice of the abundant research in Australia and overseas that show the highly damaging effects on children of unresolved parental conflict and dysfunction. Ms Clarke’s evidence is that unless the parents work on their co-parenting relationship and conflict then S’s anxiety symptoms are likely to exacerbate. As a consequence there is a risk that S is unlikely to grow and develop into a secure and confident young woman. I accept that evidence.
I treat these primary considerations as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of S.
Additional Considerations
In this matter I consider the additional considerations that are relevant to be as follows.
The child’s views
This consideration is set out in s.60CC3(a) as follows:
“Any views expressed by the child on any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight that it should give to the child’s views”.
S is four years of age. Whilst I accept that S expressed objection to going with her father on the occasion referred to by Ms Clarke in her second report, I do not propose to give any weight to her expression on that occasion if her statements in fact amount to an expression of her wishes.
There is also some evidence that on other occasions S has said that she does not wish to go to her father. Again, I do not propose to give any weight to these statements if such amount to an expression of her wishes.[18]
[18] Para 26 mother’s affidavit filed 22 October 2007; Para 32 father’s affidavit filed 30 October 2007; Para 14 of affidavit of Mr K filed 22 October 2007; Para 6 affidavit of Mr R filed 22 October 2007; Paras 4 & 5 of affidavit of Mrs R filed 22 October 2007
The Child’s Relationship with Significant Persons
This consideration is set out in s.60CC3(b) as follows:
“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”
I find that S has a normal, happy relationship with her parents, maternal grandparents and her siblings from her mother and father’s first marriages.
She appears to enjoy a similar relationship with her step-mother, Ms H and her step-father, Mr K.
Ms Clarke expressed the view that S’s primary attachment is with her mother.[19] I accept this. She further opined that because of the nature of the parenting arrangements implemented by the parties S has not been permitted to develop a secure attachment to her mother in her first three years of life. For this reason she said that the child was less likely to develop optimally. [20]
[19] Para 89 of Ms Clarke’s first report
[20] Ibid. Paras. 93,94 & 96 and Answers 11, 13,14,16,19,21,43,44,48 & 50 of her second report
There is evidence, from both parents that S is mostly unhappy when leaving her mother to spend time with her father. I accept this. There is also evidence from the mother and others, that S is sometimes distressed before and after spending time with her father and on some occasions has evidenced a reluctance to spend time with her father. [21]
I accept this.
[21] Paras 9, 11, 12, 13, 14 and 15 of affidavit of Mr K filed 22 October 2007; Para 6 affidavit of Mr R filed 22 October 2007; Paras 4 and 5 affidavit Mrs R filed 22 October 2007
Ms Clarke reported that at the time of the second interview S objected to leaving her mother to go with her father when she was encouraged to do so and told she would “be fine” and when she replied on three occasions, “I won’t be fine”. She also covered her eyes when her father appeared. [22]
[22] Paras 40 and 44 of Ms Clarke’s second report
Whilst there was some criticism of Ms Clarke, by the father, arising out of the controlled circumstances of her interviews and the fact that she formed her views after only interviewing the parties and S on two occasions, I do not accept that criticism. Court experts are regularly called upon to express expert opinion in controlled circumstances and often after only seeing the parties and children on one occasion. It does not, in and of itself, devalue their expert observations and opinions. Here, Ms Clarke had the benefit of a second set of interviews, some six months later. Her professional opinion and recommendations however remained unaltered.
Further, Ms Clarke’s opinions were not only based on her observations in the interviews but on the history of the child’s primary care as recounted by both parents and the history of the child’s symptoms. The mother’s historical account as related to Ms Clarke was challenged by the father, as was her inability to provide an explanation as to why, in the face of her concerns about S’s difficulties and distress, she increased her time in her father’s care. However I am satisfied on the totality of the evidence that the mother gave her evidence truthfully including the descriptors of S’s behaviour related to Ms Clarke.
On the basis of a trifecta of indicia then, including the mother’s account, Ms Clarke’s view was that it was not unreasonable to conclude that S had not been able to develop a clear mental representation of her mother until the age of three and that she was experiencing separation anxiety. To help resolve that, in her view, she needed a more paced experience of increased time in her father’s household. Her expert view was that the separation anxiety was unlikely to resolve in the context of the current ongoing parental conflict and that the parental focus needed to be on cooperation and less competitive parenting so that S was more likely to feel secure. I accept this evidence.
Parenting and Discharge of Parenting Responsibilities
This consideration is set out in s.60CC3(ca) as follows:
“the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent”
I find that the mother has demonstrated an appropriate willingness and ability to facilitate and encourage a close and continuing relationship between the child and her father as evidenced by her affording the father significant time with the child following her birth. This included her agreeing she says, before the child was weaned, at the father’s suggestion that she express milk to afford the father more time with the child.[23] The father says that the mother was always agreeable to his spending time with S [24] and that until December 2006 he spent appropriate time with the child which time increased incrementally as the child aged.
[23] Para 24 mother’s affidavit filed 22 October 2007
[24] Paras 7, 26 and 27 father’s affidavit filed 16 March 2007; Para 8 affidavit Ms H filed 22 October 2007
Whilst I accept that the father has a poor view of the mother’s parenting skills and views her as a neglectful mother I find that he is willing and has the ability to promote the child’s relationship with her mother.
Effect of any change in the Child’s Circumstances
This consideration is set out in s.60CC3(d) as follows:
“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 she or he has been living”
On the father’s proposal S will be required to spend more time away from her mother, her primary carer, and spend more time in a household very different from her mother’s household. She will be required to make adjustments arising from the different parenting styles, routines and order in the father’s and the mother’s households. S will be the youngest of two older children in her father’s household whereas in her mother’s household she is effectively an only child at present. Ms Clarke says these adjustments will be a challenge for this young child. I accept her evidence. Should the mother become pregnant then this is likely to be a further adjustment for S.
The parties have been unable to achieve a cooperative parenting arrangement that is likely to support S in the adjustments she will, on the father’s proposal, be required to make as she moves between her parent’s households and is required to spend more time in her father’s household.
The parents have not addressed the issues identified by Ms Clarke that in her view are problematic for them in achieving cooperative parenting. Whilst at the conclusion of the trial the father indicated that he would now agree to engage in the counselling recommended by
Ms Clarke in her first report the outcome of that therapeutic intervention is unclear.
Further unless the relationship between Ms H and the mother is repaired then that is likely to impact negatively upon S as she matures.
Given that S is experiencing some separation anxiety arising, I find, from an insecure or anxious attachment to her primary carer, the mother, as a result of her being separated too early from her mother, I also find that it is more likely than not that any increased time away from her mother at this stage is unlikely to afford S’s psychological health the time it needs to heal and that if that does not occur then she may suffer consequences later in life.[25] Ms Clarke’s professional opinion, with which I agree, is that a more paced experience of increased time in her father’s household is more likely to meet S’s needs, in particular her psychological development. The risk of the father’s proposal for increased time leading to equal time is that it may not provide S with the time she needs to respond to her separation anxiety from her mother.
[25] Pages 251, 257 of Ms Clarke’s first report, Answers 13,16,19,21,43,50 and 56 of Ms Clarke’s second report
Further unless the parents address their individual and co-parenting issues and their conflict, then the equal time shared care regime proposed by the father is more likely to exacerbate S’s present anxiousness and symptoms. I accept Ms Clarke’s evidence that if this were to occur then S –
“is unlikely to grow and develop into a confident and secure young woman without having that opportunity to heal and form views that she’s really well cared for and can trust and trust others and be trusted…”.
The Practical Effect and Difficulty
This consideration is set out in s.60CC3(e) as follows:
“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”
There appear to be no practical difficulties and expense in the child spending time with and communicating with her parents save for the fact that the parties live some 25 kilometres apart and there was differing evidence between the parties as to how long it would take to travel between their residences and the various proposed schools during school hours. In my view the distance and time factors here do not provide a practical difficulty.
I accept that if the mother has another child, as she hopes, that her need to care for her baby may impact upon her ability to transport S however I do not regard this as a significant issue. The mother’s parents gave evidence that they would be prepared to assist if required. Mr K has also provided support in the past and the father in these proceedings also indicated through his counsel during her oral submissions that he would be prepared to do additional driving if required.
The Capacity of each of the Parents to provide for the Child’s Needs
This consideration is set out in s.60CC3(f) as follows:
“the capacity of:
(i)each of the 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 ”
The father is described by Ms Clarke as a caring and involved father, competitive and directive, rather than cooperative and responsive.[26] This was my observation of him as well. He is articulate, results oriented, disciplined and he finds comfort in regimen, order and routine. He has a strong belief in the correctness of his own approach to life, including parenting.
[26] Paras 132, 133 of Ms Clarke’s report
He is proud, rightly, of his two older children who live predominately with him. By all accounts they are achieving well in academia and their extra-curricular activities. He wants to afford S with the same opportunities that these children have had. He believes that the mother has been less successful in her parenting of her own children. He sees his parenting style as superior to that of the mother and his household able to offer more than what the mother has to offer S.
The father is dismissive of Ms Clarke’s professional diagnosis on the likely cause of S’s anxiety, preferring to attribute responsibility for this entirely to the mother.[27] He also says that if she has an anxious attachment to her mother then it could also be due to the child’s temperament.[28]
[27] Paras 26 – 31 of father’s affidavit filed 22 October 2007. Annexure to affidavit of father filed on
[28] Page 17 father’s written submissions
It was submitted on behalf of the father that he has seriously applied himself to the welfare and development of his children. However, I am not satisfied that the father has done so in the one area of critical importance to the emotional development of S, and that is in the area of developing a cooperative relationship with the mother. Whilst the quality of that relationship is dependant on two participants, I am satisfied that the relationship is more likely to improve if the father is prepared to make some changes to his personal style and interaction with the mother.
The mother is described by Ms Clarke as a loving mother, non-assertive, less initiating and less directive in her parenting style.[29] This was my observation of her as well. She presents as open, nurturing and accommodating. She appears to have some difficulty being assertive and articulating her thoughts at times. That is not a criticism but an observation. She is at times less sure of herself than the father. It was my observation of her that she was more likely to be prepared to be persuaded than directive and of the two parents the one more likely to give ground.
[29] Para 129 of Ms Clarke’s report
The father says his proposed equal time regime will provide a “balance” to the life offered by the mother notwithstanding the significant differences in their respective households. He feels that the importance of his parental role has at times been undervalued by the mother. The mother believes that the father has been judgmental of her and her approach to her parenting. There is some truth in both perspectives.
There is some evidence, for example, that at times the mother did not consult the father on matters. Notwithstanding her failure to do so on occasions I am satisfied that the mother’s actions were not done to be intentionally exclusive of the father but more likely due to a lack of appreciation, on occasions, as to how the father’s role should be optimally accommodated in their co-parenting of S. The mother seeks to attend counselling with Ms Wileman and has agreed to attend a parenting course. I believe that she will likely respond to both opportunities and benefit from the information that she receives.
The father would also benefit from ongoing counselling and attendance at a parenting course notwithstanding that he attended a parenting course in 2004.[30] He is quite judgmental of the mother and appears to have little appreciation of the rigidity of some of his views and the effect that his actions and beliefs may have on the mother or their relationship as co-parents or why the mother believes that he “looks down” on her.[31] For example:
(a)The father was critical of the mother allowing S to roll around on a carpeted floor at Ms Clarke’s rooms.[32] He was critical of the mother reading a magazine during S’s swimming lesson rather than adopting, in his view, a more safety conscious approach in watching her. This was notwithstanding that the mother was in close proximity to the child and the lessons were supervised by an instructor. This remained his view at trial.
(b)
At paragraph 52 of the father’s affidavit filed on 16 March 2007 he says “[Ms King] has four children with her first husband. Then she conceived S. [Ms King] has now remarried and is about to give birth to another child in June. In total she has 6 children conceived with three different fathers.” The implication in this statement is clear and in the context of his affidavit is meant to convey his belief that the mother has made unwise life choices, has acted irresponsibly and is deficient as a parent and a person. The evidence is that the mother has been married twice. The father has been married three times.[33] The mother’s first four children were born in a marriage that lasted some twelve years. It was on all counts an abusive relationship and she left with the children. The father was briefly married for three years to his first wife. His first two children were born of a second marriage that lasted eleven years.[34] He met
Ms King, and only after a few months, together, they conceived a child, albeit, it appears unplanned. Their relationship terminated after about four months and both the mother and father thereafter remarried. The mother intends to have children from her marriage. Unfortunately she has suffered two miscarriages in her attempts to do so. The father does not intend to have children from his marriage. I raise this not to question either parties life choices but to highlight the father’s perspective, his lack of appreciation as to why that statement might be offensive to the mother and as an example of why the mother may feel that he was passing judgment on her.
[30] Para 82 of father’s affidavit filed 22 October 2007
[31] Para 9(i) father’s affidavit filed 30 October 2007
[32] Para 5 Ms Clarke’s second report
[33] Para 42 Ms Clarke’s first report
[34] Para 6 father’s affidavit filed 30 October 2007 (14 year relationship)
Further, the father, in my view, does not appreciate that his focus on equal time to provide the “balance” he seeks for S must yield to what arrangement is best likely to promote S’s needs at this point in time. If I accept Ms Clarke’s view that S needs more time in her mother’s care and that without that her emotional and/or psychological security could be compromised, then her needs must yield to his desire for more time.
Whilst the father’s counsel urged on me to consider the mother’s reported anxiety and the contribution of the stressors in the mother’s life to her ability to meet S’s needs, as I have said I am not satisfied on the totality of the evidence that this compromises the mother parenting capacity. It is somewhat unfair, in my view, that the mother was criticised to the extent that she was for the difficulties she experienced in her first marriage and her parenting difficulties following her separation from her first husband. The father is clearly of the view that her children from that marriage are not “successes”, on his measure, particularly when compared to his own children, as evidenced it seems by his children’s academic and other extra curricular successes. However the successes that his children have received and the fact they appear to have turned out, on the evidence before me, to be well balanced children may also be as a result of their mother’s contribution to their development. Ms King’s first marriage was an abusive one and it cannot be suggested that the responsibility to parent her children from this marriage was hers alone. Further, it is just as open for me to view the mother’s decision to allow two of her children to return to the primary care of their father as being a child focussed decision on her part, designed to relieve some of the distress that the children may have then been experiencing as a result of parental conflict, than as evidence of some parenting deficit on her part.
There are number of criticisms that can be levelled at both the mother and father at times in relation to their parental decision making and conduct. For example, the father took S to Mackay during the school holidays without informing the mother. His explanation is that he would have told the mother if she had asked.[35] It begs the question however how she was suppose to know he was going unless she was told in the first place. He says that the mother rarely involves him in any day to day decisions affecting S or tells him if she takes her away for a holiday and there is evidence before me, as I have noted, that the mother allowed S to view her miscarried child without discussing this, as she should, with the father. Nor it appears did the mother tell the father that S has stopped one of her ballet classes. The effect on the child of either parent engaging in such non-consultative action does not appear to have been considered by either. Save for this highlighting parental dysfunction and its impact on S I am satisfied that the parents are otherwise able to provide for S’s needs.
[35] Para 14 father’s affidavit filed 30 October 2007
I also must consider whether Ms H poor view of the mother impacts upon her capacity to provide for S’s emotional needs when in her household given S’s close attachment to her mother.
The live-in relationship between the father and Ms H was formed shortly after the breakdown of his relationship with the mother.[36] Initially there appeared to be no difficulties in the relationship between Ms H and the mother. They were introduced when the mother was six months pregnant[37] and Ms H visited the mother shortly after S was born.[38] The relationship appeared sufficiently open that a few months after S’s birth the mother says that Ms H contacted her informing her that she was thinking of separating from the father. The mother says that a little later they in fact separated for a period of time and the father discussed this with her.[39]
[36] Para 20 Affidavit of Ms King filed on 22 October 2007.
[37] Para 20 mother’s affidavit filed 22 October 2007
[38] Para 24 father’s affidavit filed 16 March 2007; Para 7 affidavit Ms H filed 22 October 2007
[39] Para 23 Affidavit of Ms King filed on 22 October 2007
In about April 2006 however Ms H wrote a letter to the mother.[40] She says she wrote it at a time when her husband’s two other children were “adjusting to their mother relocating” following litigation arising out Ms S’s wish to relocate with the children to north Queensland. The letter appears to have been sent with the father’s support because in his view the mother had “invaded my and [Ms H]’s privacy”.[41]
[40] Annexure A Affidavit of Ms King filed on 22 October 2007
[41] Para 53 father’s affidavit filed 30 October 2007
The mother responded by a letter dated 26 April 2006.[42] Her response appears to be a reasonable and conciliatory one. She attempted to clarify issues of concern raised by Ms H and put forward a suggested process for future dialogue and a working relationship. However the result was that, on the mother’s evidence, she had not spoken to Ms H on more than two occasions in the previous eighteen months and that she is no longer able to telephone the father at his home.[43] Ms H’s evidence at trial was that, whereas prior to sending her letter she had had weekly communication with the mother, thereafter she had not spoken to the mother at all. Nor had she ever had any contact with
Mr K, S’s stepfather, save for, at one changeover occasion and at
Ms Clarke’s interviews.
[42] Annexure A to mother’s affidavit filed 22 October 2007
[43] Para 36 mother’s affidavit filed 22 October 2007
Ms H holds the view that notwithstanding her reporting four instances of alleged child neglect to the Department that it is up to the father and the mother to work out a cooperative relationship. Her evidence is that it is up to the mother to communicate with her following the completion of this litigation, that communication should be about S, and by inference no other matters, and that she intends to do nothing about improving their relationship unless the mother makes an overture to her. However the mother did make an overture to her in April 2006 and Ms H ignored that. She has not spoken to the mother since, on her account. She says that she was advised by her husband’s barrister not to make contact with the mother however she wrote her letter in April 2006 well before any litigation commenced and before the father says difficulties in his relationship with the mother arose.
The parent’s co-parenting of S does not exist in a vacuum. Her co-parenting takes place within two households. It borders on naivety for Ms H, who appears to hold a Diploma in Child Psychology,[44] to think that S’s interests are promoted by her having no contact with the mother, that contact being only between her parents. She is the father’s wife. She lives in his house, the household where it is sought that S live for half of her time. She is a carer for S and will continue to participate in her upbringing.
[44] Para 20 affidavit of Ms H filed 22 October 2007
The relationship between Ms H and the mother needs to be repaired. I am satisfied from the evidence that it is unlikely that can occur unless Ms H is prepared to make some effort in this regard. In my view it would be helpful if she agreed to participate in some counselling. She is of course not a party to these proceedings and was unfortunately not in court during oral submissions when I sought instructions from both counsel as to whether the parties respective spouses would agree to engage in such counselling and attend a parenting program.
The father did not address this matter in the presentation of his case and his own role in the matter in any meaningful way. I have some sympathy for Ms H as her evidence is that the entirety of her relationship with the father has involved ongoing litigation: firstly with Ms S and now with Ms King. It is probably not surprising that she has suffered some anxiety and depression as a result and has sought counselling for this. HoweverS’s interests are unlikely to be furthered in circumstances where her step-mother, who has the care of S from time to time,[45] has no relationship with her mother and where Ms H’ (and the father) continue to harbour unresolved concerns about S’s welfare whilst in her mother’s care.
[45] Paras 2124, and 84 of father’s affidavit filed 22 October 2007; affidavit of Ms H filed 30 October 2007
Maturity, Lifestyle, Background Factors
This consideration is set out in s.60CC3(g) as follows:
“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 things relevant”
S appears to be of ordinary maturity for a four year old. As noted I find that she is suffering from separation anxiety and/or anxious attachment from her mother.
The parent’s differences in lifestyle and background have been referred to. They materially impact upon their parenting styles and attitudes. The father accepts that his parenting style is very different from that of the mother, who he says is “more relaxed”.[46] Whilst the father does refer to some cooperation between the parties, for example, the mother’s notation in the communication book thanking him for some clothes and that “similarly, on 16 September I was able to convey to [Ms King] that S had not been troubled by her cough and that she had had a lot of fun during the weekend” and whilst he further refers to the mother’s past praise of him as a parent when she was asked to file an affidavit in support of him in his 2004 parenting dispute with Ms S,[47] his affidavit material is otherwise replete with complaints about the mother and her parenting. The mother’s affidavit similarly outlines complaints about difficulties in speaking to the father and she catalogues the difficulties in their co-parenting of S and in their relationship.[48] There appears to be no goodwill, no trust and no effective communication. The father’s evidence is that because of poor communication he found it necessary to introduce a communication book.[49] He says however that the mother is going out of her way to prevent co-parenting and often will not write in the book although copies of various entries were annexed to his affidavit. The mother says the communication book is helpful for small things to do with S’s care but not for more important matters that need to be discussed and clarified. She prefers to do this on the telephone and not at changeover in front of S.[50] The father however complains about the frequency of the mother’s calls. It is difficult to argue with the mother’s logic here. Communication books can be a useful practical tool in exchanging information on children however they are no substitute for parental discussion and decision making.
[46] Paras 72,73 and 74 of father’s affidavit filed 22 October 2007
[47] Para 76 and 75 of father’s affidavit filed 22 October 2007
[48] Para 32, 33 and 34 mother’s affidavit filed 22 October 2007
[49] Para 9(j) father’s affidavit filed 30 October 2007
[50] Para 9 of mother’s affidavit filed 19 November 2007
Differences in parenting styles do not necessarily in and of themselves preclude effective co-parenting or the equal time regime sought by the father. It is how those differences are managed by the parents, the functionality of the co-parenting relationship and its impact on the child that is the issue here.
Unless the mother and father are able to better manage their parenting differences then I find that S is likely to experience difficulty in negotiating her parent’s different households with a consequent impact upon her emotional and psychological wellbeing.
The Parent’s Attitudes
This consideration is set out in s.60CC3(i) as follows:
“the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents”
The mother raised as an issue in this case of the payment by the father of child support. Ms H owns the engineering business that the father manages, as I have noted. She is a person of independent financial means.[51] Ms H, as owner of the business was involved in setting the father’s salary upon which his child support assessment was calculated. The mother holds to the view that the father manipulated his income to achieve a certain child support outcome and that she lost some respect for the father as a consequence.[52] The father’s evidence is that his wife makes the decisions as to what he is paid, she keeps her financial affairs separate and she does not consult with him about the matter. However the evidence of Ms H is that the level of the father’s salary was worked out with the father “in great detail” together. I accept her evidence on this matter.
[51] Para 18 affidavit of Ms H filed 22 October 2007
[52] Para 19 Affidavit of mother filed on 22 October 2007
Notwithstanding this issue, I am satisfied that both parents take their parental responsibilities seriously and have an appropriate attitude to the child.
Other Factors Including Orders that are least likely to Result in Further Litigation
This consideration is set out in s.60CC3(l) as follows:
“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 ”
I am not prepared to make an interim order now and review the parenting arrangement at some future time, an option, given that both parents have indicated they will now engage in counselling. That has the potential of allowing the parties’ focus to remain on litigation and the preparation of their respective cases for a return to court. Their focus should be on achieving a functional parenting relationship and devoting their time, effort and finances to that end rather than on further litigation.
Whilst the staggered order sought by the father has the attraction that it provides potential clarity into the future, the flaw in his amended proposal is that there is no evidence that the pace proposed by him will provide S with the time she needs to heal. Nor is that parenting regime supported by a cooperative parenting relationship. There is, of course, nothing to stop a review of parenting arrangements at any time particularly if the parties are able to achieve a cooperative parenting relationship and S’s interests dictate a change. Indeed a good parenting plan should provide for review processes to meet the changing developmental needs of children.
Parental Responsibility
Under s.61DA(1), when making a parenting order, a 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. However, the presumption does not apply in certain circumstances, namely:
“(2) The presumption does not apply if there are reasonable grounds to believe that the parents of a 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….
(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.”
Both parties seek that I apply the presumption and on the whole of the evidence I regard that as being appropriate in this case.
Equal or Substantial and Significant Time with Each Parent.
As I propose to make an order that the parents are to have equal shared parental responsibility for the child I am required by s.65DAA to consider whether to make orders that the child shall spend equal time, or substantial or significant time with each parent. The section provides relevantly that I 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.”
The section also relevantly provides that if the court does not make an order for the child to spend equal time with each parent it must:
“(c)Consider whether the child spending substantial and significant time with each of the parents would be in the bests 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 provision in the order) for the child to spend time with each of the parents.”
In determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the 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:
(e)such other matter as the court considers relevant.
Ms Clarke does not recommend equal time at this juncture. I am satisfied on the evidence that the parents do not have a present capacity to implement an arrangement for equal time. Nor do they have a present capacity to communicate with each other and resolve difficulties that might arise in implementing such an arrangement. I am further satisfied that their lack of capacity to do so is likely to impact negatively on S and that an equal time parenting arrangement is accordingly not in her best interests.
Following the release of Ms Clarke’s report the parties were presented, as I said, with an opportunity to pause and reflect; to “change tack” and engage in the therapeutic intervention process recommended by
Ms Clarke given that both parents accepted that their parenting relationship was dysfunctional. They could have both, then and there, called a moratorium on the litigation. The mother, to her credit, sought the father’s agreement to his attending a parenting course with her as Ms Clarke had recommended. He refused to do so.[53] It may be that having been rebuffed she felt there was no point in further seeking consensual agreement to the interventions proposed by Ms Clarke other than by way of court order as reflected in Order 11 of her amended Response. The father did call the meeting with the mother, but as I have previously said, given their personalities, that was unlikely to succeed. He says that in doing so he wanted to try and avoid the litigation. If that was his position then I do not understand why he did not seek to engage in the process recommended by Ms Clarke. The parenting regime proposed by the father operates optimally in an environment of respectful cooperation. Even accepting that it was open to the father to challenge some or all of Ms Clarke’s professional views and taking into account the adversarial paradigm in which the parties were then operating, there was nothing to loose in embracing the process options presented by Ms Clarke. It potentially provided the “win/win” solution the father sought.
[53] Para 82 of father’s affidavit filed 22 October 2007 and Para 11 of mother’s affidavit filed 19 November 2007
The father says that his proposal will lessen the number of transitions for S in her moving between households.[54] However that is only one consideration. If the father’s case is to be accepted, the parents are in dispute on parenting styles, schooling, the cause/s of the child’s separation anxiety, appropriate disciplinary methods, whether there is consistency in the parent’s households (for example, whether the child has an afternoon nap), the frequency and appropriateness of the mother’s phone time with the child when in the father’s care, the mother’s involvement of the child in the parent’s disputes, the child’s attendance at the father’s place of work, distance and travel times between the parties residences and school, appropriate responses to health issues involving the child, social interaction and manners, which parent is child focussed and which parent is not, the stability of parenting arrangements, lack of respect for his parental role and, finally, whether the child is exposed to parental neglect in the mother’s household.
[54] Para 15 father’s affidavit filed 22 October 2007
His case is that the parent’s relationship exhibits dysfunction, poor communication, distrust and a lack of goodwill and the involvement of external authorities such as the Child Support Agency, the Department of Child Safety and Workplace Health and Safety to deal with parental complaint.
There is also limited interaction between the other members of the father’s and mother’s households, all of whom have a relationship of importance to S.
Whilst a great deal of time, effort and no doubt money was spent in the preparation of this trial, the father did not address, until the end of the trial, how he intended to respond to the level of dysfunction he himself identified. His evidence is that prior to litigation he and the mother “got on very well” and that “there were no problems” and that once the litigation is concluded they will “go back to how we were before”. Yet he initiated the litigation, litigation that was conducted by him on the basis that the mother had serious parenting deficits, had been less than successful with her other children and that she was a neglectful mother with S. He describes their relationship now, at times, as being hostile and somewhat surprisingly, he complains that once litigation started “barriers went up”. Given his past experience with family law litigation and the present extremely poor relationship he has with Ms S, one wonders on what basis he could adhere to the view that things would likely improve after trial and that the parenting relationship he agreed was not then functional would somehow magically improve.
Given his evidence to me that he would not have done anything differently, with the benefit of hindsight, other than not “have any more children”, in my view he would benefit from counselling. I am also satisfied that the mother would benefit from ongoing counselling.
I am also satisfied that both parties would also benefit from attending a parenting course. I believe that Ms H and Mr K would also benefit from participating in the counselling and from also attending a further parenting course.
S’s psychological health and development is only one issue, albeit an important one, in this case. The principal impediment to the equal time regime proposed by the father is the level of parental dysfunction and conflict. Nowhere in some 296 pages of the Court Book is this addressed in any coherent or meaningful way. There are diary entries, character references, RACQ trip planners, motor vehicle crash summary reports, motor way planning projections, telephone records, a psychological report on one of the father’s children from his earlier marriage and blue card authorities.
Current social theory is that the crucial components underpinning a successful shared care parenting arrangement lie in the attitudes, values and behaviours of parents and in their ability to promote a cooperative relationship. Even in functioning intact families, parents often exhibit different personalities and parenting styles. What is crucial however is an absence of ongoing parental conflict, an ability to cooperate, to engage in respectful dialogue, to effectively negotiate, to be accepting of differences when viewed against the totality of what each parent has to positively offer a child and to exhibit some goodwill. These crucial ingredients are absent here.
This social theory is also encapsulated in case law. [55]
[55]see H v H (2003) FLC 93-168; M v M [2005] FamCA 207
The father’s view is that he would be failing S if he did not insist on participating fully in her care, welfare and development. He (and the mother) will fail S unless they do something about their parental dysfunction. The level of participation the father seeks is not merely a function of time.[56] Whilst it was clear recent legislative changes evidenced an intent in favour of substantial involvement of both parents in their children’s lives, both in terms of parental responsibility and time spent (subject to the need to protect children from harm, abuse and family violence), it was never intended to promote equal time ahead of the child best interests. Nor does it follow that that anything less than equal time means that a parent is not participating fully in a child’s care, welfare and development.[57]
[56] Page 14 Father’s written submissions
[57] See Goode v Goode (2006) FLC 93-286; see Press Release, Attorney General’s Department of 31 March 2006
The Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility Act) 2006 says that it was designed to:
“support and promote shared parenting and encourage people to reach agreement about the parenting of children …. The amendments advance the government’s longstanding policy of encouraging people to take responsibility for resolving dispute themselves, in a non adversarial manner…… (T)he initiatives in the Bill represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed: away from litigation and towards co-operative parenting.”
The father has to date sought to use litigation as a primary form of dispute resolution. He informed Ms Clarke that if he did not achieve the court outcome he was seeking he would appeal.[58] His oral evidence before me however was that he did not intend to appeal this court’s decision. I accept that the father is now prepared to engage
Ms Wileman, albeit on a truncated basis. However it remains to be seen if the parents are prepared to undergo the level of personal scrutiny required and identified by Ms Clarke. That may involve the parties and their spouses, in engaging in more than the number of individual and joint sessions proposed by the father.[59] For that reason, I do not propose to place the limitations sought by him on the proposed counselling process.
[58] Para 53 Ms Clarke’s report
[59] Proposed Order 17, page 17 of Father’s written submissions
I find that the parent’s dysfunctional parenting relationship is presently incompatible with an equal time parenting arrangement and notwithstanding their preparedness to engage in future counselling the parties need to effect significant changes to their co-parenting relationship and adjustments to their personal styles before it would be able to support the equal time regime sought by the father.
In summary I find that the parenting failures I have identified sound against the paced proposal of the father leading to an equal time co-parenting model at this time. These failures were also identified by
Ms Clarke in her reports and in her oral evidence as being indicators that an equal time parenting regime is not appropriate at this time.
I must now consider whether S spending substantial and significant time with each of the parents would be in her best interests; and whether it is reasonably practicable and if it is, consider making such an order with each of the parents.
For a parenting order to involve a child spending substantial and significant time with a parent s.65DAA(3) requires that it must at least provide for a child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times.
It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parents.[60]
[60] KML & RAE (2006) FMCAfam 528
I am satisfied that the orders I intend to make allow S to spend substantial and significant time in her father’s care. It will allow the father to be involved in S’s day to day parenting during the school week and on weekends and provide her with an opportunity to live in his household which includes her associations with her step-siblings and Ms H. It will allow the father to be involved in S’s educational pursuits when she commences school. It will allow him to continue to participate in her current and future extra-curricular pursuits. It will allow him to participate fully on special occasions.
The parenting orders I propose to make are in line with Ms Clarke’s recommendations which in Ms Clarke’s view addressed S’s present need to spend more time in her mother’s care but also enabled S’s relationship with her father to be promoted. It is not possible in my view to formulate orders that provide a graduated increase of substantial and significant time to the equal time sought by the father because S’s capacity to spend equal time with her parents depends on her healing and feeling secure and the parents’ addressing their dysfunctional relationship.
I am otherwise satisfied that the orders are reasonably practicable and in S’s best interests.
In coming to my final conclusions I have also been guided by the objects and principles set out in s.60B.
Specific Issues
The mother seeks an order that S not accompany her father to his place of work because in her view it is dangerous. The father says that he takes appropriate steps to ensure that S is safe when at his work such as explaining to her the rules, not looking at the bright light and not leaving his office. [61]
[61] Para 20 Affidavit of father filed 22 October 2007
It is unfortunate, but reflective of the parties relationship, that this issue needed to be litigated at all. I am satisfied that the father has taken appropriate steps to ensure that S is not placed in a situation where her physical safety is likely to be compromised and I am not prepared to make the order sought by the mother. Further, in my view, attending a parent’s place of work from time to time can be an informative and happy experience for a child and therefore, save in exceptional cases, one that should also be available to S.
I propose to make an order that neither parent physically discipline S. Putting to one side the debate on the appropriateness or otherwise of the use of physical force, including the light tapping of a child’s hand, as an effective form of child discipline, the evidence is that S responds well to non-physical forms of discipline and I see no reason why that form of discipline should not be used. If there is a common approach by the parents on this it will reduce the possibility of future disagreement.
Given the orders I propose to make and to ensure clarity I propose that S continue to attend upon her usual doctor at the [E] Medical Centre at [R], except in the case of an emergency. The mother says that in the past the father has taken S to a chiropractor when she had an infection when she had previously been treated by a doctor and that on one occasion the father had given S “an unusual juice”. [62] There is evidence before me that both parents have attended, at least on one occasion together at the [R] medical centre with S and I propose that S continue to attend this centre. [63]
[62] Para 5 mother’s affidavit filed 19 November 2007
[63] Para 30 father’s affidavit filed 30 October 2007
S has been raised in the Catholic faith. The father attended her baptism.[64] He appears to have no objection to her having a christian based education and being raised in the Catholic faith.[65] The mother is a devout Catholic.[66] S regularly attends Church with her mother and it is her mother’s wish that she take her sacraments and otherwise be raised in accordance with the tenets of the Catholic faith. She is attending the children’s liturgy at her church.[67] I find that it is in S’s best interests that she continue to be raised as a Catholic and that her participation in her church activities and observances (including her sacraments, communion, reconciliation and confirmation) be supported by both her parents.
[64] Para 21 father’s affidavit filed 30 October 2007
[65] Paras 54,55,64 and 65 of father’s affidavit filed 22 October 2007;Para 22 father’s affidavit filed 30 October 2007; page 4 Father’s written submissions
[66] Para 11 mother’s affidavit filed on 22 October 2007
[67] Para 21 Mr K’s affidavit filed 22 October 2007
The mother seeks specific orders that S live with her during parts of the school holidays to enable S to spend time with her step brothers. I view this as a reasonable request.[68]
[68] Para 33 of mother’s affidavit filed 19 November 2007
I propose to make an order that each party keep the other advised in the event that they take the child away as there was evidence before me that they both make complaint against the other about past failures to do this and this has caused conflict.
I have otherwise made specific issues orders that are either agreed or appropriate on the evidence.
Schooling
I propose to make an order that S attend the [M] College both for primary and secondary school for the following reasons.
I find that all three schools proposed are likely to provide S with a good education. In light of the parenting orders I propose to make [M] College is closer to the mother’s home, it is a school with which she is familiar and as the only Catholic school of the three schools it is the one more likely to support S’s Catholic upbringing by providing her with a Catholic education.
The evidence at trial was that the father told Ms Clarke that he was not closed to the option of S attending [M] College if the mother agreed to S spending equal time in his care.[69] I am not satisfied by the father’s explanation, under cross examination, as to what he meant when he said that to Ms Clarke. The only reasonable interpretation is that he was prepared to trade a decision on schooling for time. I am not satisfied, despite the amount of time spent in dealing with this issue in the court material by the father or at trial, both in terms of costs, proximity, travel and contact with T that it is, or was, a real concern for the father if the mother had been prepared to agree to his week about proposal.
[69] Para 65, Ms Clarke’s first report
I am not satisfied from the evidence or for the reasons advanced by the father that the [P] school provides a superior education to that of [M] College. Nor does it follow that because the father’s two other children have excelled at [P] that S will also excel there. They may have excelled had they attended other schools, including [M] College.
Overall and without the need to go through each and every argument advanced for and against each school I am satisfied that [M] College will provide S with a good education, that it will support her religious upbringing as a Catholic as the curriculum involves daily religious teaching,[70] that she will have friends through her church attendance who will also attend the school and that she will continue to attend church, the church attended by one of her parents, at or near the school.
[70] Para 14 mother’s affidavit filed 22 October 2007
Whilst this was not a factor in my making an order in favour of S’s attendance at [M] College. as the mother’s evidence was that even if the father did not assist with school costs she would meet these, [71] the father did give evidence under cross examination that he would be prepared to assist with the costs, which included school fees, if S attended this school. His only real objection was that it was, in his view, a waste of money because S could get an excellent, free, education at a public school.
[71] Para 14 mother’s affidavit filed 22 October 2007
Summary
The conclusions and findings that I have made in relation to the primary and additional considerations form the basis for my considerations about the parenting orders that I intend to make.
Ultimately in this matter I conclude that it is in the best interests of the child to make the orders set out at the commencement of this Judgment which includes an order that the child live with the mother and spend substantial and significant time with the father as particularised.
In summary my reasons for reaching these conclusions are as follows and in reaching the conclusions that I have, I have considered whether it is in the interests of S to spend equal time or substantial and significant time with each of the parents:
a)I am satisfied that the parents are devoted and loving parents to S and that she is attached to both her parents.
b)I am satisfied that S enjoys appropriate attachments to members of her parent’s households, her step-siblings and maternal grandparents.
c)The mother has been S’s primary caregiver and I find that S is primarily attached to her mother.
d)Whilst the parents were initially able to co-parent effectively they now have a highly dysfunctional parenting relationship.
e)The parents’ perceptions of what represents S’s best interests are polarised with both bringing differing attitudinal positions to their issues.
f)The parent’s current relationship is characterised by hostility, distrust, poor communication and ineffective dispute resolution skills.
g)The relationship between the mother and the father’s wife has broken down.
h)The parents’ relationship has been unsupported by any ongoing therapeutic intervention to assist their parental dysfunction and to deal with any unresolved relationship issues.
i)The parties’ co-parenting relationship is unlikely to improve in a context of competition and litigation.
j)Unless the parents, with the support of their spouses, are able to achieve a working relationship that permits respectful dialogue, that is based on goodwill, that fosters a relationship based on cooperation rather than competition and conflict, that requires self analysis and behavioural change, then the parental co-parenting of S is likely to continue to be dysfunctional and as such cause psychological harm to S.
k)The father and Ms H maintain a belief that the mother has been neglectful in her care of S. I find that there is no reasonable basis for that belief.
l)S has been experiencing some anxiety/distress as reported by the mother and by others, including the father, and it is more likely than not that her distress is an insecure attachment/separation anxiety arising as a result of S being separated from her primary carer before she was developmentally ready. S requires more time with her primary carer, her mother, in an environment without ongoing parental conflict, to ensure that her emotional and psychological well-being is not compromised.
m)The parent’s parenting styles and their households are presently too different and their relationship too dysfunctional to enable them to successfully negotiate their differences in a way that optimises S’s care.
n)S’s best interests will not presently be served by the implementation of the equal time regime proposed by the father but rather by a paced increase in time in her father’s household as proposed by Ms Clarke.
o)I am satisfied that the parenting orders I make will continue to promote S’s connections with her step-siblings, step-parents and maternal grandparents.
p)It is in S’s interests that there is clarity on specific parenting issues to avoid ongoing dispute.
q)It is in not appropriate that the parents use any form of physical discipline in their dealings with S.
r)It is in S’s best interests to attend [M] College, a Catholic school that will provide her with an appropriate education and support her faith.
s)It is in S’s interests to be raised in the Roman Catholic faith. It is also in her interests that both parents support her observance of the tenets of that faith in their respective households.
t)I am satisfied that the father will ensure that S is safe during any work visits and I find that it is in S’s interests to experience time with her father at his place of work.
u)I find that it is in S’s interests to have continuity of medical care if possible and in that regard to continue to attend the [E] Medical Centre and that there otherwise be agreement between the parents if she is to consult other health professionals save in the case of emergency.
v)I find that it is in S’s interests to spend time with both sets of step-siblings during the school holidays.
Conclusion
The best outcome for S and the legacy that she is deserving of from her parents is a childhood free of parental conflict, one where her parents model good behaviours including respectful communication, the ability to resolve differences with goodwill, where she is free to flourish in both their households, where she is free to express her love for both her parents in both households and where she is free to move between households at a pace dictated by her needs.
Mr Hailes and Ms King need to view themselves as equal co-partners in this worthy role.
I consider the orders that I have made are in the best interests of the S.
I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of Purdon-Sully FM
Acting Associate: E Crutchfield
Date: 15 February 2008
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