Hogan and Templeton

[2016] FCCA 2935

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOGAN & TEMPLETON [2016] FCCA 2935

Catchwords:
FAMILY LAW – Parenting –issue was when overnight time should commence and how it was to be increased.

Legislation:

Family Law Act 1975

Applicant: MS HOGAN

Respondent: MS TEMPLETON

File Number: MLC 8948 of 2015

Judgment of: Judge Wilson

Hearing date: 14 October 2016

Date of Last Submission: 14 October 2016

Delivered at: Melbourne

Delivered on: 17 November 2016

REPRESENTATION

Counsel for the Applicant: Ms S. Fisken

Solicitors for the Applicant: Berry Family Law

Counsel for the Respondent: Ms M. Smallwood

Solicitors for the Respondent: Clancy & Triado

ORDERS

(1)All previous parenting orders are discharged.

(2)The applicant and respondent have equal shared parental responsibility for the child of the relationship, X born (omitted) 2014 (“the child”).

(3)The child live with the respondent.

(4)The child spend time with the applicant as follows:

(a)from 14 October 2016 until 9 January 2017:

(i)each Wednesday from 8.00 a.m. until 8.00 a.m. Thursday; and

(ii)each Saturday from 8.00 a.m. until 6.00 p.m.;

(b)from 10 January 2017 until 9 February 2017:

(i)each Wednesday from 8.00 a.m. until 1.00 p.m. on Thursday; and

(ii)each Saturday from 8.00 a.m. until 6.00 p.m.;

(c)from 10 February 2017 until 14 April 2017:

(i)each Wednesday from 8.00 a.m. until 5.00 p.m. on Thursday; and

(ii)each Saturday from 8.00 a.m. until 6.00 p.m.;

(d)from 15 April 2017 to 1 January 2018:

Week 1:

(i)for two (2) consecutive nights mid-week at times as agreed and failing agreement from Tuesday from 8.00 a.m. until 5.00 p.m. on Thursday; and

Week 2:

(ii)from 8.00 a.m. on Saturday until the commencement of kindergarten on Monday or 9.00 a.m. if the child does not ordinarily attend kindergarten on Monday;

(e)from 1 January 2018 until 1 January 2019:

Week 1:

(i)for two (2) consecutive nights mid-week at times as agreed and failing agreement from Wednesday from 8.00 a.m. until 8.00 p.m. on Friday; and

Week 2:

(ii)from 4.00 p.m. on Friday until the commencement of kindergarten on Monday or 9.00 a.m. if the child does not ordinarily attend kindergarten on Monday;

(f)from 1 January 2019 to 1 January 2020:

Week 1:

(i)from the conclusion of kindergarten/school on Wednesday (or 5.00 p.m. if a non-school/kindergarten day) until the commencement of school on Friday; and

Week 2:

(ii)from the conclusion of school on Friday (or 8.00 a.m. if a non-school day) until the commencement of school on Monday (or if Monday is a public holiday until the commencement of school on Tuesday or 8.00 a.m. if Tuesday is a non-school day);

(g)from 1 January 2020:

Week 1:

(i)from the conclusion of kindergarten/school on Thursday (or 5.00 p.m. if a non-school/kindergarten day) until the commencement of kindergarten/school on Friday; and

Week 2:

(ii)from the conclusion of school on Friday (or 8.00 a.m. if a non-school day) until the commencement of school on Monday (or if Monday is a public holiday until the commencement of school on Tuesday or 8.00 a.m. if Tuesday is a non-school day);

(h)for Christmas:

(i)In 2016 and each alternate year thereafter, from 3.00 p.m. Christmas Eve to 3.00 p.m. Christmas Day; and

(ii)In 2017 and each alternate year thereafter, from 3.00 p.m. Christmas Day to 3.00 p.m. Boxing Day;

(i)

for Easter in 2017 and each alternate year thereafter, from

10.00 a.m. on Easter Saturday until 6.00 p.m. Easter Sunday;

(j)on the child’s birthday in 2017 and each alternate year thereafter, from 10.00 a.m. until 6.00 p.m. if the birthday falls on a non-school/kindergarten day and from the conclusion of school/kindergarten to the commencement of kindergarten/school the following day if the birthday falls on a school/kindergarten day;

(k)on Mother’s Day in 2017 and each alternate year thereafter if the child is not already in the applicant’s care, from 12.00 noon on the preceding day to 6.00 p.m. on Mother’s Day;

(l)on Father’s Day in 2017 and each alternate year thereafter if the child is not already in the applicant’s care, from 12.00 noon on the preceding day to 6.00 p.m. on Father’s Day;

(m)

on the applicant’s birthday and siblings’ birthdays (including step-siblings, if any) each year if the child is not already in the applicant’s care from 12.00 noon on the preceding day to

6.00 p.m. on the applicant’s or siblings’ birthdays;

(n)in 2018:

(i)for four consecutive nights during the term holidays as agreed and failing agreement on such dates and times as nominated by the applicant in writing and no later than fourteen (14) days prior to the commencement of the term holiday; and

(ii)for five (5) consecutive nights per fortnight during the long summer holidays on such dates and times as agreed and failing agreement on such dates and times as nominated by the applicant in writing and no later than fourteen (14) days prior to the commencement of the term holiday; 

(o)in 2019:

(i)for one half of each of the school term holidays at times to be agreed, and in the absence of agreement:

A.in each odd-numbered year, for the second half of the school holidays commencing at 10.00 a.m. on the day being the midpoint of the term holidays and concluding at the resumption of school; and

B.in each even-numbered year, for the first half of the school holidays commencing at the conclusion of school on the day the school terms ends and concluding at 6.00 p.m. on the day being the midpoint of the term holidays;

(ii)for one half of the long summer school holidays on a week-about basis, at times to be agreed, and in the absence of agreement:

A.in even-numbered years, for the first week of the school holidays commencing at the conclusion of school on the day that the school terms ends; and

B.in odd-numbered years, for the second week of the school holidays commencing at 10.00 a.m. on the first Friday during the school holidays;

(p)from 2020:

(i)for one half of each of the school term holidays at times to be agreed, and in the absence of agreement:

A.in each odd-numbered year, for the second half of the school holidays commencing at 10.00 a.m. on the day being the midpoint of the term holidays and concluding at the resumption of school; and

B.in each even-numbered year, for the first half of the school holidays commencing at the conclusion of school on the day the school terms ends and concluding at 6.00 p.m. on the day being the midpoint of the term holidays;

(ii)for one half of the long summer school holidays, at times to be agreed, and in the absence of agreement:

A.in even-numbered years, for the first half of the school holidays commencing at the conclusion of school on the day that the school terms ends and concluding at 6.00 p.m. on the day being the midpoint of the summer holidays; and

B.in odd-numbered years, for the second half of the school holidays commencing at 10.00 a.m. on the day being the midpoint of the summer holidays until the resumption of school; and

(q)at such further or other times as may be agreed between the parties.

(5)Both parties shall each permit the child to telephone the other parent at such times as any of they may reasonably request.

(6)The arrangements in paragraph 4(n) and 4(o) be suspended during the school holidays once the child has commenced school and resume in the same cycle as if not interrupted by those holidays.

(7)The applicant’s time with the child be suspended and the child spend time with the respondent as follows:

(a)for Christmas:

(i)in 2016 and each alternate year thereafter, from 3.00 p.m. Christmas Day to 3.00 p.m. Boxing Day; and

(ii)in 2017 and each alternate year thereafter, from 3.00 p.m. Christmas Eve to 3.00 p.m. Christmas Day;

(b)

for Easter in 2018 and each alternate year thereafter, from

10.00 a.m. on Easter Saturday until 6.00 p.m. Easter Sunday;

(c)on the child’s birthday in 2018 and each alternate year thereafter, from 10.00 a.m. until 6.00 p.m. if the birthday falls on a non-school/kindergarten day and from the conclusion of school/kindergarten to the commencement of kindergarten/school the following day if the birthday falls on a school/kindergarten day;

(d)on Mother’s Day in 2018 and each alternate year thereafter if the child is not already in the respondent’s care, from 12.00 noon on the preceding day to 6.00 p.m. on Mother’s Day; and

(e)on Father’s Day in 2018 and each alternate year thereafter if the child is not already in the respondent’s care, from 12.00 noon on the preceding day to 6.00 p.m. on Father’s Day.

(8)

The parties shall not enrol the child in any extra-curricular activities without first obtaining the written consent of the other parent,

with such consent not to be unreasonably withheld, particularly if such activity is to occur within the other parent’s time with the child.

(9)Each party inform the other party if they intend to take the child outside the State of Victoria during the period when the child is in that party’s care.

(10)In the event that either of the parent’s intend to travel with the child outside the Commonwealth of Australia, the parent seeking consent provide the other parent with written notice at least sixty (60) days prior to departure together with written details of her intention to travel and within twenty-eight (28) days of the travel date provide a copy of a complete itinerary including details of flights (including copies of return tickets), accommodation and contact details whilst absent from Australia. 

(11)Unless mutually agreed between the parties in writing, such overseas travel is not to interfere with the child’s attendance at school.

(12)In order to facilitate changeover when same does not occur at the child to kindergarten or school then the applicant and/or her agent is to collect the child from the respondent’s residence at the commencement of her time and the respondent shall collect the child from the applicant’s residence at the conclusion of her time.

(13)The respondent’s father be restrained from attending changeovers.

(14)Should the respondent and/or her agent be more than 15 minutes late in effecting changeover, the applicant’s time with the child be extended so that there is no reduction in the child’s time with the applicant.

(15)Within seven (7) days, the respondent provide contact details of all health professionals that the child has attended upon together with copies of all medical documentation, including but not limited to any information provided by doctors, nurses, hospitals, vaccination certificates or confirmation of attendance upon any therapists and/or councillors.

(16)The parties do all such acts and things necessary to keep the other informed of treating medical practitioners involved in the child’s care.

(17)The respondent provide to the applicant the Maternal Child and Health Nurse “Green Book” upon request for same with the respondent to provide the book at the next changeover and the applicant to return the book at the conclusion of her time with the child.

(18)Each parent notify the other parent as soon as practicable of all medical appointments for the child including but not limited to therapy, doctor’s appointments, nurse appointments, attendance at hospitals, vaccinations, psychiatrists, psychologists, developmental specialists or any other professionals and that the other parent is to be given the opportunity to attendance such appointments.

(19)The parties shall immediately inform the other of any serious illness or injury sustained by the child whilst in their care and further provide any particulars of any treatment received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.

(20)The parties shall each make available to the other any medication prescribed for the child to enable the other party to administer such medication to the child and the other party shall thereafter administer the mediation as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the party with whom the child is living or spending time.

(21)The parties do all such acts and things necessary to ensure that both parties have access to all medical information that relates to the child from any treating practitioner.

(22)The parents provide a copy of these Orders to any kindergarten/school/childcare centre which the child may from time to time attend.

(23)The parents are each at liberty to communicate directly with the child’s kindergarten and school and to obtain documents and report that are ordinarily available to parents at their own expense and they are otherwise at liberty to attend functions and events that parents are ordinarily able to attend.

(24)In the event the parties are in disagreement regarding parenting matters including but not limited to the child’s schooling/education and cannot resolve their disagreement through private discussion; the parties agree to make a genuine attempt to resolve their dispute by attending upon a Dispute Resolution Service/Family Consultant within fourteen (14) days of one party issuing to the other a written invitation to attend such dispute resolution.

(25)The parties forthwith advise in writing the other parent of their residential address phone numbers and email address and name of occupants, and any change thereto within 7 days of such change.

(26)The parties are to use the child’s full legal name, being X to be used on all formal or informal forms, including but not limited to enrolments forms, medical records and appointments, schooling, lessons, sports, online profiles, belongings or other arrangements.

(27)Within seven (7) days of Orders being made, the respondent rectify all records which refer to the child as “X” or “XX” to refer to his full legal name as referred to in the preceding order including but not limited to the child’s Medicare registration and medical records held by his treating health professionals and that the respondent provide documents confirming that the rectification of the said records without delay.

(28)Without admitting the necessity for same, each party, their servants and agents be and are hereby restrained from abusing, insulting, or otherwise denigrating the other party or members of the other party’s family or friends in the presence or hearing of the child.

(29)The parties exchange information concerning the children by way of text messages and a communication book with such information to be included as to when the child last ate and slept.

(30)The parties do all necessary things to engage in counselling with Ms B or such other counsellor or family dispute resolution practitioner as is mutually agreed to address the parenting relationship and an effective communication plan and follow all reasonable directions and recommendations of the said counsellor.

(31)With respect to organising the counselling referred to in the preceding order:

(a)the total cost of the counselling is to be borne equally by the parties;

(b)the frequency of such appointments are to be as recommended by the said counsellor;

(c)should either party cancel the appointment, the parent who cancels the appointment shall be responsible for payment of cancellation fee (if any); and

(d)each party is alternately responsible for making bookings starting with the applicant on 1 October 2016. Each subsequent booking shall be made quarterly or as otherwise directed by the counsellor, as close after the 1^st of the month as possible. Each party may elect a date within a week of the first of the month as a preferential date, in lieu of agreement the date will default to the 1^st or as soon after as reasonably practical. Appointments will be made one (1) month in advance. If the other party does not receive confirmation on the 1^st of the month before, they should contact the other party and give twenty-four (24) hours of notice to provide a booking date, if such a date is not received within twenty-four (24) hours of that message, the other party shall be free to make the booking themselves following the above guidelines.

(32)The parties do all necessary things to enrol in a post separation parenting course to and provide confirmation of enrolment and completion to other parent as soon as practicable.

(33)Each parent is to refer to the other as (omitted) or (omitted) each parent will also encourage the child to refer to the other first and foremost as Mum. The respondent is to refrain from telling the child that the applicant is not his mother or parent.

(34)All extant applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8948 of 2015

MS HOGAN

Applicant

And

MS TEMPLETON

Respondent

REASONS FOR JUDGMENT

Introduction

1.The single issue in this case is whether the regime for the time the child X born (omitted) 2014 (“the child”) spends with the applicant Ms Hogan (“the applicant”) should be preferred over the competing regime proposed by the respondent Ms Templeton (“the respondent”).

2.Most of the factual matters on which this litigation proceeded were not the subject of dispute. Instead, the parties requested me to determine the time to be spent by the child based on psychological evidence.

Synopsis

3.For the reasons that follow, in my judgment the regime advanced by the applicant is to be preferred to that advanced by the respondent.

The competing positions

4.Very helpfully, Ms Smallwood, counsel for the respondent, produced a table that recorded the position adopted by the applicant and by the respondent at various stages of the child’s development prior to his commencing at school. It is useful to reproduce that table which I have done immediately below -

X’s age	Ms S’s recommendations	Applicant’s proposal	Respondent’s proposal
26 months (omitted) 2016	Overnight time Week 1: 1 night Week 2:  1 night Total = 2 nights per fortnight + additional unspecified day time	Overnight commences Week 1: 1 night Week 2: 1 night Total = 2 nights per fortnight + 2 additional daytime periods	Daytime periods only Time occurring on 4 different days per fortnight
33 months (omitted) 2017	Continuation of 2 nights per fortnight + additional unspecified day time periods	Further overnights added Week 1: 2 nights  (consecutive) Week 2: 2 nights (consecutive) Total = 4 nights per fortnight	Overnight time commences 1 night per fortnight + further time on 3 other days per fortnight
3 years (36 months) (omitted) 2017	Approaching 3 years, introduction of further overnight Week 1: 1 nights Week 2: 2 consecutive nights Total = 3 nights per fortnight + additional day time periods	Continuation of 4 nights per fortnight	Continuation of 1 night per fortnight (building to 2 full days either side of the 1 night) + further time on 2 other days per fortnight
3.5years (41 months) (omitted) 2018	Continuation of 3 nights per fortnight (these 3 nights non-consecutive) + additional unspecified day time periods	Further overnights added Week 1: 2 nights  (consecutive) Week 2: 3 nights (consecutive) Total = 5 nights per fortnight + introduction of school holiday time (although X not yet at school)	Addition of further night & day Total = 2 nights per fortnight + further time on 2 other days per fortnight
4 years (omitted) 2018	Continuation of 3 nights per fortnight (these 3 nights non-consecutive) + additional unspecified day time periods	Continuation of 5 nights (includes 3 nights consecutive) + school holidays time (although X not yet at school)	Addition of further night Week 1: 1 night Week 2: 2 nights (alternate weekend) Total = 3 nights per fortnight + further time on 1 other day per fortnight (the alternate Wednesday)
4.5years (omitted) 2019	Continuation of 3 nights per fortnight (these 3 nights non-consecutive) + additional unspecified day time periods	Continuation of 5 nights but day time period around nights reduces (includes 3 nights consecutive) + school holidays time (although X not yet at school)	Continuation of 3 nights per fortnight + further time on 1 other day per fortnight (the alternate Wednesday)
5 years (omitted) 2019	Prior to X commencing school, introduction of 3 consecutive overnights Week 1: 1 night Week 2: 3 consecutive overnights Total = 4 nights per fortnight	Continuation of 5 nights per fortnight + school holidays time (although X not yet at school)	Continuation of 3 nights per fortnight + further time on 1 other day per fortnight (the alternate Wednesday)
5.5 years (X due to commence school) (omitted) 2020	Recommendations silent as to time once X commences school	Time reduces from 5 to 4 nights Week 1: 1 night Week 2: 3 nights Total = 4 nights per fortnight + school holiday time	Reconfigure time to introduce 3 consecutive overnights  Week 1: dinner on alternate Wed Week 2:  3 nights (alternate weekend) Total = 3 nights per fortnight + dinner in the alternate week + school holiday time

Relevant factual setting

5.The applicant and the respondent formed a relationship and commenced living together in (omitted) 2010. They finally separated in February 2015. The child born to them is now a little over two years of age. He encountered developmental issues during the pregnancy and was born three months premature.

6.The applicant now lives in the (omitted) suburbs of Melbourne and the respondent now lives in the (omitted) suburbs of Melbourne. It was common ground that something in the order of an hour drive separated the current residences of the applicant and the respondent.

7.It was also common ground that since separation, the child has lived with the respondent in the eastern suburbs. To date, the applicant and the respondent have behaved very well in the joint upbringing of the child, despite their separation.

8.In affidavit material filed in support of this application the applicant stated that physical distance between the applicant and the respondent was placing undue burdens on the child and that the applicant sought orders permitting the child to spend overnight time with the applicant. The respondent opposed the frequency and duration of the overnight stays proposed by the applicant.

9.At the risk of stating the obvious, the child is not yet of school-age nor even of pre-school age. No arrangements have yet been made to secure the child’s attendance at any particular primary school. For that matter, neither the applicant nor the respondent own the residences in which they now live. Ms Smallwood brought to my attention a passage from one of the respondent’s affidavits to the effect that the respondent intended to remain in the geographical area where the respondent now lives as the respondent’s family lives in that area, her workplace is located close to that area and her daily activities take place in that area. Those issues assumed a degree of relevance in view of the contentions in the case concerning the distance to be travelled between the residences of the parties.

10.Both the applicant and the respondent hold responsible senior occupations in (omitted).

11.It was common ground that the respondent currently suffers from anxiety. The respondent’s condition is made worse by the respondent’s concerns for the child. On behalf the respondent, Ms Smallwood submitted that an overnight regime in accordance with the applicant’s submissions will almost certainly cause the respondent’s anxiety to increase with the consequence that the respondent is likely to project that anxiety onto the child, self-evidently to the detriment of the child.

The psychological evidence

12.One witness gave viva voce evidence in this case, the family consultant Ms S. Ms S adopted the contents of the family report exhibited to her affidavit sworn 4 August 2016.[1] Both parties agreed that each would have the opportunity to cross-examine Ms S and that Ms S was not a witness in either party’s camp but rather that Ms S was akin to an expert appointed by the Court.

[1] At annexure “RS2”.

13.Ms S gave evidence in her capacity as a qualified psychologist.[2]

[2] Affidavit of Ms S sworn 4 August 2016 at annexure “RS1”.

14.Some debate took place between counsel about the characterisation of Ms S’s evidence. On behalf of the respondent, Ms Smallwood submitted that at no stage in Ms S’s report did Ms S use the word “recommendation” and that Ms S’s comments were to be construed as being no more than observations. To the extent that it mattered, Ms Fisken, counsel for the applicant, submitted that in answers to questions put to her by Ms Fisken, Ms S on many occasions offered “recommendations” because the questions put to her enquired after Ms S’s recommendations on an array of propositions.

15.It seemed to me that Ms S understood the difference between questions put to her that called for her to express a “recommendation” on the one hand and questions that were not so expressed. Ms S impressed me as a careful witness who gave considered evidence, agreeing to propositions put to her when she agreed in full while not agreeing with propositions put to her when she did not agree with the totality of the proposition put. Ms Smallwood did not invite Ms S to express any recommendations when giving viva voce evidence and in relation to the comments in Ms S’s report, Ms Smallwood pointed out that at no stage did Ms S go so far as to make any written recommendations. There is force in the submissions of both counsel. In the end it seemed to me that the proper construction of the points made by Ms S lay in a reading of her report as qualified by her viva voce evidence. In respect of certain issues, Ms S made statements in her report then in answer to the questions put to her by Ms Fisken, Ms S agreed that in relation to that issue Ms S “recommended” a certain thing, then in answer to questions put by Ms Smallwood, Ms S agreed that she did not intend to convey a firm “recommendation” on that matter.

16.Whether described as a recommendation or otherwise, to a large extent it was readily apparent that various propositions advanced by Ms S were little more than Ms S’s view, that view being underpinned by her very many years of psychology experience. That said, on many issues the point advanced by Ms S did not call for psychological evidence. From example, Ms S stated that an hour’s travelling for the child between parents was undesirable. That may be the case (repeat, may) if such travel time eroded study time or caused fatigue. Then again, it is far from uncommon for children to travel to and from school getting caught in traffic up to an hour during each journey.

17.It seemed to me that I should exercise caution before splitting hairs in the proposed regime of time to be spent with the child by the applicant and the respondent. Ultimately, it is the search for a regime that represents the best interests of the child that should guide me. The provisions of the Family Law Act 1975 (Cth) (“the Act”) mandate as much. Both the applicant and the respondent should spend so much time with the child that the child enjoys the benefit of a meaningful relationship with both the applicant and the respondent. To my way of thinking that accords with the import of the relevant provisions of the Act.

18.

Turning to the specific provision of the table provided by counsel for the respondent, it is necessary for me to consider the evidence of

Ms S in respect of each epoch in the child’s life as is recorded on the table.

19.Before going to that, it is necessary to record observations which address issues relevant to s.60CC of the Act by reference to the evidence given by Ms S.

20.In her report dated 6 February 2016, Ms S made observations about the applicant and the respondent.

21.In relation to the applicant, Ms S said that the applicant presented as an “open and straightforward person” who felt that her time with the child had been limited.[3]

[3] Affidavit of Ms S sworn 4 August 2016, annexure “RS2” at [10].

22.In respect of the respondent, Ms S said the respondent presented as being “emotionally labile and fragile”[4] and who appeared to have struggled with the separation. Ms S referred to a report from Associate Professor Dr S,[5] psychologist, who observed that the respondent’s presentation when Dr S saw the respondent was consistent with Dr S’s diagnosis. Ms S referred to the respondent suffering stress. Ms S referred to parenting times for the child being of concern to the respondent and that the child is “unsettled, becomes more clingy, his sleep routine is disturbed”[6] when the child is returned to the respondent’s care.

[4] Affidavit of Ms S sworn 4 August 2016, annexure “RS2” at [18].

[5]

[6] Affidavit of Ms S sworn 4 August 2016, annexure “RS2” at [22].

23.So far as the child was concerned, Ms S reported that he was an “endearing and delightful toddler”, “active and energetic” and who “confidently runs around exploring his environment”.[7]

[7] Affidavit of Ms S sworn 4 August 2016, annexure “RS2” at [24].

24.Ms S recorded that the applicant and respondent were “caring, loving and attentive parents”[8] to the child and that the child mixed interchangeably with both applicant and respondent without observable anxiety or distress.

[8] Affidavit of Ms S sworn 4 August 2016, annexure “RS2” at [27].

25.Ms S recorded that the child separated easily from the applicant and settled immediately with the respondent. Ms S stated that she observed the child to be more active and lively with the respondent although the applicant presented, according to Ms S, as a confident and capable parent, attuned to the child and a parent who encouraged the independence and learning of the child.

26.Ms S reported that the respondent was struggling with her emotional distress in relation to the separation and the loss and coming to terms with the respondent’s newfound status. Ms S reported that the applicant also was grieving at the applicant’s loss although the applicant appeared to have reconciled the emotional impact of the separation and that the applicant presented as being “emotionally resolved”.[9] Ms S stated that the applicant had reorganised and had moved forward, presenting as steady and logical and generally able to separate feelings from the situations then under consideration.

[9] Affidavit of Ms S sworn 4 August 2016, annexure “RS2” at [31].

27.Ms S said that the applicant and the respondent had responded differently to the separation and to the process of grieving as they were at different stages of the grieving process, a process from which the respondent had not emerged.

28.Despite that, Ms S reported that the applicant and the respondent presented as “loving and committed parents”[10] and that the child’s behaviour with each parent was testament to the loving care each parent provided.

[10] Affidavit of Ms S sworn 4 August 2016, annexure “RS2” at [32].

29.On the important issue of the child’s development, well-being and security with each parent, Ms S reported that the respondent was the child’s primary parent and that any parenting routine needed to take into account the child’s primary attachment to the respondent and it needed to “preserve and not injure that attachment”[11] while at the same time ensuring that the child’s attachment to the applicant was also fostered.

[11] Affidavit of Ms S sworn 4 August 2016, annexure “RS2” at [34].

30.Ms S reported that the child was of an age where –

[A]ttachment and [the child’s] psycho-emotional development depends upon continuous, predictable, emotionally-available caregiving which enables him to form organised attachments and which supports him to develop his capacity for self-regulation and growing autonomy.[12]

[12] Affidavit of Ms S sworn 4 August 2016, annexure “RS2” at [36].

Ms S said that parental conflict and discontinuity can compromise the child’s behaviour. She said the need for parental consistency and cooperation was essential in assisting the child to adapt and “manage the transitions between not only different physical environments but emotional environments”.[13]

[13] Ibid.

31.Ms S said that the child was best served by a “slow and staged development of overnight time”[14] as it was preferable for the child to be assisted to manage the transition and not to be overwhelmed when settling into a new routine.

[14] Affidavit of Ms S sworn 4 August 2016, annexure “RS2” at [39].

32.To that end, Ms S reported that developmentally the child “would most likely do better introduced to more daytime contact initially and then gradually increasing [the child’s] overnight time”.[15]

[15] Ibid.

33.Ms S stated the current routine should remain in place for a period of about two to three months after which it can increase to a full day. She said the increased time should continue for about another three months so that overnight time could be considered after the child was two years old.

34.In paragraph 41 of her report Ms S advised that initially overnight time should occur as part of a 24-hour period with changeover at 10.00 a.m. Ms S said the 24-hour period should remain unchanged for about three months thereby permitting the child to adjust and that time could be increased incrementally every few months ultimately leading to the child’s third birthday at which time consecutive overnights could be introduced. Before the child commenced at school, as a guide Ms S suggested three consecutive overnights per fortnight thus establishing an alternate weekend regime of Friday night pickup and Monday morning return.

35.While acknowledging that Ms S gave the information in her report in a professional capacity founded in very many years’ experience in family consultant work, many of the points that she made were obvious and could not be regarded as immutable hard and fast prescriptions to be applied absolutely and without deviation by both parents. It seems to me that a fair reading of Ms S’s report indicated that she did her best to provide guidance for useful parenting in circumstances where both parents were newly separated and they had to make workable arrangements for the child to spend time with both parents, separately, as a consequence of the separation. I do not read her report as being something akin to a statutory prescription providing a mandatory, absolute and not-negotiable prescription for future parenting arrangements of the child. Of necessity, flexibility was required. Ms S said as much in her report. If it transpired that the child adapted suitably to the exploratory regime that Ms S was contemplating, then common sense dictated that the parents would respond favourably by adjusting the time the child spent with each to equating as near as possible to equal time. Of course that was set against a backdrop where Ms S identified that the respondent was the primary parent to a toddler whose primary attachment was to the respondent while at the same time Ms S recognised that the attachment to the applicant needed to be fostered.

36.To my mind it is to elevate the observations of Ms S into some hard and fast edict by being unduly unbending in the application of her observations. To that end, the applicant’s and respondent’s quibbling over an extra night here, or lesser time there, is to wholly miss the thrust of the flexibility endorsed by Ms S, underpinned as it is by the need to observe the development of the child at the child’s various stages of development after having explored the success or otherwise of the earlier time canvassed by Ms S. The applicant and the respondent must not overlook that Ms S did her best to put forward a workable proposal for parenting that recognised that the child had a particular bond with the respondent and which concurrently recognised that the applicant’s attachment with the child needed to be fostered. On more than one occasion in her report Ms S stated that the applicant and respondent needed to adopt a cooperative parenting relationship that shielded the child from conflict.

37.It seemed to me uppermost that the applicant and the respondent must not use the child to engage in point-scoring or revenge consequent upon the separation.

38.The main reasons given by Ms S for her cautious approach towards overnight stays related to the child’s cognitive skills. In essence, she recognised that the child had been born prematurely and that his cognitive skills were or might have been less developed than those of a child who had not been born prematurely. With that in mind, she recommended what she described as a cautious approach towards overnight time spent by the child with the applicant. Those observations are to be set against a backdrop where Ms S recognised that both parents are caring and deeply committed to the welfare of the child, that both knew the child and the child knew both parents and the child appeared happy in the presence of each parent. Ms S did not develop what she meant about erring on the side of caution when speaking of one, two or any other number of overnight stays, whether consecutive, weekly or fortnightly or howsoever otherwise.

39.It must also be recognised that in due course any problems associated with delay in the development of cognitive skills will be cured by the passing of time. Equally, the more time the child spends with both parents, the greater the familiarity the child will attain.

40.In his report dated 12 December 2015,[16] Associate Professor Dr S took the view that the respondent presented a symptom profile of “Adjustment Disorder, with Prominent Features of Anxiety and Depressed Mood”.[17] He stated that the essential feature of an adjustment disorder is “the development of clinically significant emotional or behavioural symptoms in response to an identifiable psychosocial stressor or stressors”.[18] He said the respondent’s stressful experiences during and after the breakdown of the relationship with the applicant fully satisfied that hallmark criterion.

[16]

[17] Ibid.

[18] Ibid.

41.Associate Professor Dr S did not give viva voce evidence. His report went into evidence unchallenged. That said, no exploration was made of the significance of the respondent suffering adjustment disorder. However, Associate Professor Dr S expressed the opinion that in his view the respondent was likely to continue to suffer from adjustment disorder for an extended unspecified period of time depending on the nature and duration of the litigation and whether or not the living arrangements for the child facilitated his best interests and whether they subjected the respondent and the child to unnecessary stress.

42.That seemed to me to be something of a circuitous prognosis. As long as the child’s overnight regime was unsatisfactorily implemented (according to the respondent, at least) the respondent was likely to suffer stress which in turn was likely to have an impact upon the child.

Which regime represented the best interests of the child?

43.Turning to the competing positions of the parties, I see no real basis for the respondent’s resistance to the proposal put forward by the applicant. To my mind, the observations of Ms S do not provide sufficient foundation for either party to assert that Ms S’s suggestion is the only way forward. Ms Smallwood herself submitted that Ms S’s evidence was general and consisted of suggestions rather than recommendations, indicating a witness who showed a great deal of perspicacity and an understanding of what the situation involved.

44.On behalf of the respondent no meaningful argument was developed about the considerations relevant to the elements of s.60CC of the Act. Conversely, the applicant did advance those arguments. It is necessary that I canvass them.

Section 60CC(2)(a) of the Act

45.

There can be no doubt that the child will benefit from having a meaningful relationship with both the applicant and the respondent.

Ms S recognised that the child is developing well and seemed happy and secure with each parent.

Section 60CC(2)(b) of the Act

46.No concerns were raised regarding the need to protect the child from exposure to abuse, neglect or family violence.

Section 60CC(3)(a) of the Act

47.Neither party sought to rely upon evidence about any expressed views of the child. Having regard to the age of the child that was not surprising.

Section 60CC(3)(b) of the Act

48.The child has established a close and loving relationship with both parents. Nothing in the material tells otherwise. I accept that without reservation.

Section 60CC(3)(c) of the Act

49.For the purposes of this subsection, I am required to take into account the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues concerning the child and to spend time with the child.

50.Having regard to the way this case proceeded, the important issue in the case was the time the applicant spent with the child, especially overnight time. Issues relating to matters relevant to this subsection did not feature except in so far as they bore upon time being spent by the child between the applicant and the respondent. In the passages above I have addressed those issues.

Section 60CC(3)(ca) of the Act

51.Issues of maintenance with respect to the child did not feature in this case.

Section 60CC(3)(d) of the Act

52.Under this subsection the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of those parents, or any other child or other person with whom the child has been living is relevant.

53.The debate in this case focused on the time that the child would spend with each parent. To that extent, most of the evidence in the case was directed to the likely effect of any change in the child’s circumstances consequent upon his spending greater or lesser time with either the respondent or the applicant. In the passages set out above, I have addressed those issues.

Section 60CC(3)(e) of the Act

54.So far as this subsection was concerned, no practical difficulty or expense emerged from the evidence consequent upon the child spending time or communicating with either parent.

Section 60CC(3)(f) of the Act

55.Under this subsection, the capacity for the child’s parent to provide for the child’s emotional and intellectual needs is relevant. It seems to me that both parents are utterly devoted to the welfare of the child including the child’s emotional and intellectual needs. The respondent’s psychological issues as diagnosed and reported upon by Associate Professor Dr S represent something of a concern. Whether those represented any impact on the respondent’s capacity to provide for the child’s emotional and intellectual needs was not explored. However, it is fair to say that on a comparative basis, the applicant did not suffer from any such psychological issue.

Section 60CC(3)(g) of the Act

56.No issue arose in this case to which s.60CC(3)(g) applied.

Section 60CC(3)(h) of the Act

57.On the evidence, this subsection was not relevant as the child was not Aboriginal or a Torres Strait Islander.

Section 60CC(3)(i) of the Act

58.For the purposes of this subsection, each parent has demonstrated a developed understanding of the responsibilities of parenthood.

Section 60CC(3)(j) of the Act

59.There was no evidence of incidents relevant to this section.

Section 60CC(3)(k) of the Act

60.Nor was there any evidence of family violence orders.

Section 60CC(3)(l) of the Act

61.This subsection strives to ensure that hostilities between the parties are put to an end. The applicant contended that the applicant’s proposal was the least likely to lead to further litigation. The respondent made no submission on point. It is almost impossible to tell whether the hostilities between the parties will come to an end. If the child’s development suffers by the implementation of these orders then it is likely that hostilities will reignite. That is speculation, however.

62.It seems to me that cooperation is the key to the cessation of hostilities. That is wholly and solely within the control of the parties to this litigation.

Conclusion

63.

As Ms S endeavoured to point out in her report and in her

vive voce

evidence in Court, the success or otherwise of the orders I have made depends upon the development of the child and the cooperation between the parents. The orders are for a limited duration. The parties should give their utmost efforts to making these orders work. That is in the best interests of the child.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 17 November 2016

Affidavit of Associate Professor Dr S affirmed 15 December 2015 at annexure
“DIS-3”.

Affidavit of Associate Professor Dr S affirmed 15 December 2015 at annexure
“DIS-3”.