HAROLD & OLSON

[2018] FCCA 2817

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAROLD & OLSON [2018] FCCA 2817

Catchwords:
FAMILY LAW – Interim arrangements in respect of child aged approximately two years of age – high conflict – nature of interim hearing – presumption of equal shared parental responsibility – determining the child’s best interests – section 60CC factors.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 60CC(2A), 60CC(3), 60CC(3)(m), 61DA, 61DA(2), 61DA(3), 61DA(4), 65DAA

Cases cited:

Keats & Keats [2016] FamCAFC 156
SS v AH [2010] FamCAFC 13

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Applicant: MR HAROLD

Respondent: MS OLSON

File Number: ADC 3735 of 2018

Judgment of: Judge Brown

Hearing date: 25 September 2018

Date of Last Submission: 25 September 2018

Delivered at: Adelaide

Delivered on: 2 October 2018

REPRESENTATION

Counsel for the Applicant: Ms Chesters

Solicitors for the Applicant: Dixon Gallasch

Counsel for the Respondent: Ms Lindsay

Solicitors for the Respondent: Boril Olds Solicitors

ORDERS

UNTIL FURTHER OR OTHER ORDER:

1. The child [X] born 2016 live with the father.

2. To give effect to order 1 hereof the mother deliver the child to the father at a time and place to be agreed between the parties, but failing agreement, to be at the Suburb A Police Station on Tuesday, 2 October 2018 at 3:00pm.

3. The child spend time with the mother from 3:00pm on Tuesday until 4:00pm Thursday each alternate week and from 3:00pm Friday until 4:00pm Sunday on each intervening week commencing Tuesday 9 October 2018 with the child to be exchanged between the parties at a location to be agreed, but failing any agreement, the Suburb A Police Station.

4. Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 19 November 2018 at 9:30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto.  The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

5. The proceedings be adjourned to 3 December 2018 at 9:30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3735 of 2018

MR HAROLD

Applicant

And

MS OLSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to interim parenting arrangements for the care of a child who is not yet 2 years of age.  She is [X] born 2016.  The parties to the proceedings are [X]’s father – Mr Harold; and her mother, Ms Olson. 

2. Each party seek orders that would see [X] living predominately with him or her.  Each asserts having been [X]’s primary provider of care in the past.  At this early stage, it is readily apparent that there is a significant degree of conflict between them.

3. At this interim hearing stage, time before the court is limited.  As such, there is no opportunity for cross examination and so for the court to make findings of fact about issues in controversy between the parties concerned.  There are many controversial issues in this case.

4. Interim proceedings invariably arise against a background of crisis and urgency.  In such cases, there is no time for any independent expert to be commissioned to make an assessment of the developmental needs of any child concerned. 

5. In this case, the major controversy is who of the parties has been [X]’s main provider of care and accordingly, at this stage, until further investigations are made, who of them will be able to best provide this very young and vulnerable child with the emotional security and reliable care which she undoubtedly requires.

6. In addition, the parties are in fundamental dispute about the nature of the relationship between them.  The father categorises the mother as being essentially a disinterested parent, who has abrogated her parental responsibilities for [X], to him.  As such, he contends that he must incontrovertibly be [X]’s primary carer.

7. On the other hand, the mother categorises the father as a coercive and controlling person who has issues with controlling his temper.  She alleges that she has been stalked by Mr Harold and he is attempting to utilise [X] as a means of coercing and controlling her.  She does not accept that he can be characterised as [X]’s primary carer, given past care arrangements for her care.  In addition, she asserts that the father is interested in having [X]’s care in order to be able to claim social security benefits relating to her.

8. At this very early stage of proceedings, it seemed to me to be important for the parties to at least attempt to reach some middle ground in respect of arrangements for [X]’s care.  This was particularly so given the obvious fact that they are destined to remain in a relationship as parents for a very long time indeed and as such, the on-going viability of this aspect of their relationship was likely to have significant implications for [X]’s wellbeing in the longer term.

9. In these circumstances, it seemed to me that the court should do whatever was possible to avoid further damage to the parties’ parenting relationship, which was obviously severely compromised. Accordingly, arrangements were made for the parties to attend at a Family Dispute Resolution conference convened by a Family Consultant, pursuant to the provisions of section 11F of the Family Law Act 1975.  The date allocated was 19 November 2018, which is some seven weeks away.

10. Given the relative proximity of this date, I asked the parties’ respective lawyers if there was any possibility of any middle ground being reached, which would permit each of the parties to interact regularly with [X], in safe circumstances and which would also provide an appropriate mechanism for her to be exchanged, between her parents, without her being exposed to conflict.

11. Unfortunately, no such agreement was possible.  The mother proposed a three day about regime, which in the words of her counsel, Ms Lindsay represented a sharing of the risk.  It was also proposed, as I recall, that the child be exchanged at a police station. 

12. Her preferred position, however, is that [X] live predominantly with her.  She did not have any clear formal proposal for the father to spend time with [X], in the circumstances, advocating that the court make the order it considered appropriate in the circumstances.

13. Neither such proposal was acceptable to the father.  He seeks the delivery up of the child, to him, on the basis that he has been the child’s principle provider of care since April of 2018, an arrangement which he contends the mother unilaterally brought to an end.

14. On this basis, he contends that in order to ensure the ongoing stability of [X], she needs to be returned forthwith to him.  On its face, his application, like the mother’s, makes no provision for the child to spend time with her mother on any interim or provisional basis. 

15. On a final basis, he too proposes that the court make an order that [X] spend time with her mother, as the court “may consider appropriate in the circumstances”.    Accordingly, the main focus of the case, from each party’s perspective is on who of them should have predominant care of [X].  Time with the other parent seemingly being incidental to this consideration.

16. During the course of the hearing, it became apparent that the father proposed that the child spend a period of two consecutive days, in her mother’s care, each week, alternating on a fortnightly basis between Tuesday to Thursday in one week; and from Friday to Sunday in the other.

The nature of an interim hearing

1. The father commenced these proceedings on 10 September 2018.  He requested an urgent hearing on his application.  His request was acceded to and the case allocated an expedited hearing on 25 September 2018. 

2. This was busy duty list on which a further 22 matters had been listed.  Notwithstanding the pressure of work on the court, due to the lack of agreement, it was necessary for the hearing to proceed.  I elected to reserve the decision so I could re-read the affidavit material and make sure nothing had been over-looked in the context of the busy duty day, which in some ways is analogous to the triage provided at the emergency department of a busy hospital.

3. By 25 September, Ms Olson had not had an opportunity to file answering documents, within the time protocols specified by the court’s rules.  However, she had been able to obtain legal advice and thereafter prepare some documents, which her lawyer, Ms Lindsay handed up in court. 

4. Accordingly, it seems to be the case that both parties affidavit material had been hastily prepared, against a background of urgency.  Constraints of time, on 25 September, did not permit me to take any oral evidence from either of the parties concerned and so make my own assessment of what sort of people and parents they are and who is likely to be the more credible. 

5. The Full Court of the Family Court in Goode & Goode[1] has indicated that, in the truncated hearing available at the interim hearing stage, the court should endeavour to do the following:

   ·    Identify the competing proposals of the parties;

   ·    Identify issues in dispute them;

   ·    Endeavour to identify any agreed or uncontested relevant facts;

   ·    Thereafter, if at all possible, make necessary finding of fact bearing in mind the limited nature of the hearing available;

   ·    Apply the considerations, relevant to the child’s best interests, to any findings so made.

   [1] Goode & Goode (2006) FLC 93-286

6. In very many cases, due to the level of controversy, it may be difficult, if not impossible, for the court to make findings of fact.  In such highly controversial cases, it is also very often the case that each party concerned will make serious criticisms of the other’s parenting capacity, which raise issues to do with the emotional and physical safety of any child concerned.  Effectively, each parent asserts that any child concerned will be at risk if in the care of the other.

7. For obvious reasons, such a situation creates a dilemma, for the court, as in the context of an interim hearing, it is not able to conclude conclusively where any risk for a child specifically lies.  As the Full Court pointed out in Keats & Keats:[2]

   “As with many interim hearings, the proceedings were determined without cross-examination and the primary judge was not in a position to resolve evidentiary controversies.  The primary judge applied the principles that emerge from cases such as SS v AH,[3] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…”

   [2]  Keats & Keats [2016] FamCAFC 156

   [3]  SS v AH [2010] FamCAFC 13

Background

1. The father was born on 1996.  He describes himself as a single parent.  The mother was born on 1993.  She describes her occupation as (occupation omitted).  The parties agree that they met in 2015.  They have never been married and neither has any other children, apart from [X]. 

2. They began to live together in 2015, at the home of the maternal grandparents in Town 1, a rural location to the (omitted) of Adelaide.  [X] was born in 2016, when the parties were living at Town 1. 

3. When [X] was only three or four weeks old, the family moved to a rural property in outback South Australia, so the father could take up a position as a (occupation omitted).  The parties agree that, during [X]’s early infancy, the mother provided the child’s care. 

4. In this context, Ms Olson categorises Mr Harold as lacking patience for [X] and herself and acting out “verbally and physically [her] on numerous occasions”.[4] As yet, the father has not formally responded to this assertion.

   [4] See mother’s affidavit sworn 25 September 2018 at [3]

5. The parties further agree that they left the station in mid-2017, as each found the isolation of the property difficult.  They returned to the Town 1 home of the maternal grandparents.  Neither was working so it seems probable that family finances were reasonably tight.  In addition, I am unable to ascertain whether there were any other particular tensions arising from the fact that the parties and their young child were living with Ms Olson’s parents.

6. What happened next, particularly in the context of how [X] was cared for is at the heart of the current controversy between the parties.  It is the father’s position that for a period of about 3 months, which must have concluded at around October of 2017, when [X] was about one year old, the parties shared the care of [X] on a relatively equal basis.  The mother does not agree but does not give any specifics of how [X] was cared for in this period.

7. It is the mother’s position that in these circumstances, Mr Harold began looking for work and was offered a position at a (employer omitted), in nearby Town 2.  She is critical of him for not accepting the position.  The underpinning of her position being that the family’s financial security required at least one regular wage.  She acknowledges that she took the job.  Again the subtext of her case being that she did so because the father would not.

8. It is the father’s position that, whilst the mother was working, responsibility for caring for [X] devolved on to him.  The mother does not agree, deposing as follows:

   “Mr Harold was not the primary carer.  I worked six hours a day during which time he looked after her but I would take over her care immediately I got home from work and also attended to all of the household chores.  I would also attend to her in the morning before going to work.”[5]

   [5] Ibid at [7]

9. The relationship between the parties broke down in April of 2018.  It had lasted approximately three years.  It is the mother’s position that she had warned the father that he needed to stop behaving in a violent and aggressive fashion towards her otherwise she would end the relationship.  When he did not, she ended the relationship. 

10. The father’s position is that the mother had secretly formed a relationship with another person whilst she had been at work at the Town 2 (employer).  Wherever the truth precisely lies, it seems apparent that the parties’ relationship with one another became significantly muddled, at this stage, and has remained so.

11. It is the father’s case that the mother ordered him out of the Town 1 home and directed that he take [X] with him on 17 April.  He took her to live with him at his parents’ home in Suburb B.  Later, they (the paternal grandparents) decided to abandon plans to go to Western Australia to live and purchased a three bedroom home in Suburb C, in which they, the father and [X] lived.

12. The mother’s position is that she agreed to the father having [X], following the April separation, but only for a week, during which period she was intending to make arrangements with her work to reduce her hours so that she could be available to care for [X] on an equal time basis. 

13. In this context, it was the submission of her counsel, Ms Lindsay, that Ms Olson was of the understanding, in the immediate aftermath of the parties’ separation, that such equal time regimes were mandated for separated parents under the Family Law Act. The mother has deposed that it was her belief that such a regime of care would begin in the last weeks of April.

14. Mr Harold has deposed that he was [X]’s primary carer from separation until September of 2018, during which period he encouraged the mother to spend time with [X] regularly.  In this context, he contends that the parties agreed, via text message in mid-June, on care arrangements for [X].  These show apparently that the mother indicated a proposal for her to see [X] on Friday, Saturday and Sunday in one week of a fortnight; and Tuesday, Wednesday and Thursday of the second week.[6]

    [6] See Annexure H 1 to the father’s affidavit filed 10 September 2018

15. It is the mother’s case that, in fact, the father made it difficult for her to spend time with [X].  She says that, after agreeing on shared care, the father said that she could only see [X] on two days per week.  The mother further contends that she continued to agitate for shared care, which was what she thought had been agreed.  She alleges that the father agreed to this proposal, but only on the basis Centrelink was told he was primary carer.

16. Again, the impression I have is that communications between the parties, during this emotionally laden period, can only be described as extremely confused and muddled.  In this context, in my view, it is significant that I have no evidence whatsoever from either set of grandparents, whom I would imagine are extremely interested in these proceedings and, as such, likely to have strong views as to what is the best outcome for [X]. 

17. Although I may well be wrong, I also imagine that the grandparents have provided a significant level of support to the respective offspring in providing care for [X].  In my view, this is a further example of the general deficits in the evidence which has been provided to me and provides justification as to the need for the court to obtain advice from a family consultant pursuant to section 11E of the Act.

18. In what must have been difficult circumstances for each party, the mother alleges that the father and the paternal grandfather began to stalk and harass her by driving slowly past her home and then doing burn outs.  She also alleges that there was an unpleasant incident between the parties on 4 September, when the father spun the wheels on his car aggressively, whilst she was working with her horse, causing it to become spooked.

19. Mr Harold has not had an opportunity to respond to the specific allegations regarding the stalking of Ms Olson.  He does, however, acknowledge that she asked to spend more time with [X] than he was prepared to countenance on the basis that he considered the regime proposed was not suitable for [X] because she was too young to cope with it.

20. He also confirms that the police have contacted him about a complaint emanating from the mother that he is stalking her, which has left him puzzled presumably on the basis that there is no basis in fact for her allegation.  Certainly, it would seem to be the case that he has not been charged with any offence and is not the subject of any family violence order.

21. The incident of 4 September coincided with Father’s Day, which was scheduled for the following weekend, which had been allocated for the mother to spend with [X].  The father wanted the child returned to him early so she could spend Father’s Day with him and his family.  The parties had no capacity to resolve this issue successfully. 

22. Against this difficult and confused background, the mother elected not to return the child to the father.  It seems to be her position that she is justified in so doing by what happened on 4 September.  The incident was reported to the Child Abuse Hotline, which elected to treat the matter as a Notifier Only Concern and to take no formal action.

23. It is the father’s position that since early September he was not aware specifically where the mother and [X] were living but believed she had moved in with her boyfriend.  He also alleges that she has failed to answer his telephone calls made so he could ascertain the whereabouts of [X].  The mother asserts that she was fearful of the father.

24. The mother deposed as follows as to the reason why she decided not to return [X] to the father:

    “As I had serious concerns about [X]’s welfare I decided it was in [X]’s best interests that I did not return to Mr Harold.   I believe that this behaviour shows he is in no way mentally stable to care for her at this point of time and she should stay with me where I know she is safe.” [7]

    [7] See mother’s affidavit at [25]

1. Implicit in this statement is the acknowledgement that it had earlier been agreed that the child would be returned to her father’s care and necessarily the mother had abrogated this agreement.  The mother now asserts that the child is more emotionally stable and secure than she was whilst in her father’s care.  In this context, she provides her view that [X] has been detrimentally effected by what she terms as the father’s anger and aggression.

2. For his part, the father asserts as follows:

   “The mother’s unilateral conduct in removing the child from my care and preventing me from seeing the child since 3 September 2018 demonstrates that the mother is putting her own self-interest ahead of the welfare of the child who would be distressed by the mother’s conduct in abruptly terminating the arrangement that had existed since separation and preventing [X] from return to me thereby separating her from me and my family.”[8]

   [8] See father’s affidavit at [18]

3. Accordingly, both the father and the mother assert that [X] is at risk of suffering some form of psychological harm if she remains or returns to the care of the other.  The difficulty for the court, at this stage of proceedings, is that it has no independent or expert evidence to support either party’s contention in this regard.

4. Regrettably, it is likely to be the case that the greatest threat to [X]’s emotional wellbeing is that she is at the centre of a tug-of-war between her parents (and quite possibly each set of her grandparents) for possession of her.  Rather than being shared between those who love her, she is being pulled hither and yon between them.  Axiomatically, this is a situation which cannot be in her best interest or provide her with the stability a child of her years requires.

The applicable legal principles

1. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. 

2. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

4. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

5. There are two primary considerations, which are as follows:

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

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

6. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

7. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

8. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

9. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

10. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[9] 

    [9]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

11. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[10] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[11] 

    [10]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [11]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

12. In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.

13. As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

14. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

15. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

16. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

17. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

18. The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:

    ·consider the section 60CC matters relevant;

    ·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:

    Ø there are reasonable grounds to believe abuse or family violence has occurred;

    Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;

    ·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;

    ·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;

    ·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);

    ·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.

    ·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Consideration

1. It seems probable that [X] is likely to derive benefits from having a meaningful level of relationship with each of her parents.  Although her care arrangements seem to have been somewhat chaotic, particularly of late, I am satisfied that she has a close and loving relationship with each of her parents, both of whom love [X].

2. The separation of the parties was clearly difficult.  I mean neither party any disrespect, but they do not present as mature adults who are resolved in respect of the circumstances surrounding their separation.  In this situation they have clearly found great difficulty in agreeing upon and implementing any medium term plan to provide [X] with secure and predictable care, which will also allow her to maintain a proper level of relationship with each of them and develop appropriately.

3. It is difficult for the court, at this stage, to make any definitive finding as to whether [X] has been exposed to family violence, neglect or abuse.  Rather, it seems more probable that, due to the conflict between the parties, her care has not been optimal. 

4. Certainly, at this stage, there is no concrete evidence to indicate that she has not been provided with sufficient care, in either household, to ensure that her immediate physical needs for food, shelter, hygiene and the like have not been met.  The threat to her well-being is more likely to centre on her having been exposed to conflict between her parents and the risk that this will continue.

5. More difficult to ascertain is who of the parents is the more emotionally in tune with [X] and so better placed to provide for her needs in this regard.  In addition, it is difficult for me to assess who of the parties is likely to have the superior level of insight into the heavy responsibilities incumbent on being a parent.

6. One of the important considerations in the case is [X]’s age.  She is not yet two years of age.  As such, she must be regarded as a highly vulnerable child.  She is totally dependent upon those around her to supply her every need.  Given her tender years, she is not in a position to make her needs known explicitly.  She is not likely to be able to comprehend why arrangements for her care have changed so radically over the past twelve months or so and particularly so dramatically since early September.

7. In these circumstances, in my view, great care must be taken, by the court, not to endorse any change to the relatively stable arrangements for [X]’s care through any precipitate mechanism of self-help.   This is the major criticism which the father levels at the mother and, in my assessment, there is some moment to it. 

   Although, in this context, I also do not discount the mother’s position that that the father has been intent on excluding her from [X]’s life.  Clearly there was some form of crisis between the parties in early September.  At this time, I am not in a position to attribute fault in regards to this incident.

8. I also accept that [X] is likely to have a significant level of relationship with both sets of grandparents, whom I would hope have kept out a weather eye for how [X] is coping, given the tension between her relatively young parents. 

9. In my view, it is regrettable that they have not been able to broker some sensible consensual resolution in respect of short term arrangements for [X]’s care.  I suspect that they too have become enmeshed in the conflict, aligning themselves with the parent with whom they share a blood tie, which is invariably the case.

10. The mother was mistaken in her view that an equal time regime is the mandated position for most children, following separation.  Part VII provides for the exercise of a carefully calibrated discretion.  The concept of equal shared parental responsibility relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents. 

11. In the event the presumption applies, any order resulting in a child spending either equal time or substantial and significant time with each parent is subject to the satisfaction of two equally important conditions.  Firstly, such an outcome must be in the best interests of the child concerned; and secondly reasonably practicable to implement.

12. Given [X]’s tender years, in the absence of expert evidence, I do not consider that an equal time regime would be in her best interests.  In addition, given the parties conflicted relationship and obvious communication deficits, I do not think that such arrangement is logistically feasible.

13. In any event, at this early interim stage, I do not consider that it is appropriate for the presumption to be applied.  In my view, there are simply too many gaps in the evidence.  The question for the court therefore is what arrangements should be made for [X]’s care, at this early, difficult and controversial stage?

14. This question must be determined by reference to the considerations delineated in section 60CC of the Act. However, this must be an imprecise exercise given the limited and controversial evidence before me. I am satisfied [X] has a significant level of relationship with both her father and mother. However, it seems that at least of late she has received more care in her father’s household than that of her mother.

15. Each party accuses the other of acting unilaterality in respect of parenting arrangements.  In the mother’s case, it is clear that she did in fact elect not to return [X] to her father and did therefore precipitate a significant level of change in her care, without consultation with the father.

16. A shared care regime has the appearance of being completely equitable for all concerned. However, [X] is not a commodity to be shared out between the parties and those who love her. In my view, her best interests require a level of certainty and predictability, which has hitherto not been possible because of the muddled relationship between her parents.

17. Both parents are to be criticised for engineering this difficult situation.  But I must also bear in mind that they are young and first time parents, who have had an emotional separation.  In these circumstances, it is not unusual that there has been a lack of clarity in their arrangements for their child.

18. The allegations of stalking and coercion are serious but the evidence in support of them is limited.  Some of the mother’s concerns – the father’s association with bikies; his father mistreating him as a child; – are based in hearsay and appear hyperbolic.

19. For these reasons, I have come to the conclusion that the regime uneasily inaugurated in April of this year, which Ms Olson brought to an end should be reinstated pending the parties taking part in a child dispute resolution conference.

20. Accordingly, [X] should be returned to the predominant care of her father and spend two days/nights in the care of her mother each fortnight as Mr Harold proposes.  In these circumstances I will direct that [X] be returned to her father forthwith. 

21. Regrettably, due to the tensions between the parties, this will have to occur at a police station.  In the absence of other agreement, I will order that the police station be the Suburb A Station and the time be midday on Saturday 30 September 2018.

22. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     2 October 2018