Hopkirk and Hopkirk
[2009] FMCAfam 1162
•3 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOPKIRK & HOPKIRK | [2009] FMCAfam 1162 |
| FAMILY LAW – Parenting – child not quite three years old – amount of time with father – whether graduated regime appropriate. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Astor & Astor (2007) FamCA 355 Pilcher & Schneider (2008) FMCAfam 1092 Trinder & Chiswick (2009) FamCA 729 |
| Applicant: | MR HOPKIRK |
| Respondent: | MS HOPKIRK |
| File Number: | MLC 7678 of 2008 |
| Judgment of: | Riley FM |
| Hearing dates: | 10, 11 & 12 August 2009 |
| Date of Last Submission: | 4 September 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 3 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | R Stoikovska |
| Solicitors for the Respondent: | Marshalls & Dent |
ORDERS
All previous parenting orders be discharged.
ORDER BY CONSENT
The mother and father have equal shared parental responsibility for [X] born [in] 2006 (“[X]”).
ORDERS
Pursuant to section 13C(1)(a) of the Family Law Act 1975, the parents attend therapeutic family counselling to deal with their issues relating to the care of [X], and in particular:
(a)their difficulties in communicating with each other about matters concerning [X]; and
(b)their difficulties in cooperating with each other about matters concerning [X].
The family counselling occur at an organisation nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
The parties attend counselling at such times as are directed by the therapeutic counsellor.
Each party attend such individual counselling as the therapeutic counsellor recommends at such times and at such places as the recommended individual counsellor directs.
Each parent pay for their own individual counselling and for half of the joint therapeutic counselling.
Until 1 January 2012:
(a)[X] live with her mother;
(b)[X] spend time with her father:
(i)from 5.00pm Saturday to 6.00pm Monday each alternate week;
(ii)from 7.30am to 6.00pm Monday in the other week; and
(iii)from 7.30am Thursday to 7.30am Friday each week; or
(iv)as otherwise agreed by the parents.
From 1 January 2012 until 31 December 2012:
(a)[X] live with her mother;
(b)[X] spend time with her father:
(i)from 3.30pm each alternate Thursday to 6.00pm the following Sunday; and
(ii)from 3.30pm each alternate Thursday to 9.00am the following Friday;
(c)[X] spend half school holidays with each parent by agreement and, in default of agreement, from the end of school until the midpoint of the holidays with the mother in odd numbered years and with the father in even numbered years; or
(d)as otherwise agreed by the parents.
From 1 January 2013:
(a)[X] live with her mother;
(b)[X] spend time with her father:
(i)from 3.30pm each alternate Thursday to 9.00am the following Monday; and
(ii)from 3.30pm each alternate Thursday to 9.00am the following Friday;
(c)[X] spend half school holidays with each parent by agreement and, in default of agreement, from the end of school until the midpoint of the holidays with the mother in odd numbered years and with the father in even numbered years; or
(d)as otherwise agreed by the parents.
Notwithstanding the foregoing:
(a)for the purposes of celebrating [X]’s birthday:
(i)in 2009 and alternate years thereafter, [X] spend from 8.00am until 6.00pm (subject to any kindergarten/school attendances) on her birthday with her mother;
(ii)in 2010 and alternate years thereafter, [X] spend from 8.00am until 6.00pm (subject to any kindergarten/school attendances) on her birthday with her father;
(b)for the purposes of celebrating either the father’s or the mother’s birthdays, [X] shall spend time with the parent on their birthday from 8.00am until 6.00pm (subject to any kindergarten/school attendances);
(c)for the purposes of celebrating Christmas:
(i)in 2009 and alternate years thereafter, [X] spend from 9.00am Christmas Eve until 9.00am Christmas Day with the father and from 9.00am Christmas Day until 9.00am Boxing Day with the mother;
(ii)in 2010 and alternate years thereafter, [X] spend from 9.00am Christmas Eve until 9.00am Christmas Day with the mother and from 9.00am Christmas Day until 9.00am Boxing Day with the father;
(d)for the purposes of celebrating Mother’s Day, [X] spend time with the mother from 6.00pm on the Saturday preceding Mother’s Day until 6.00pm on Mother’s Day;
(e)for the purposes of celebrating Father’s Day, [X] shall spend time with the father from 6.00pm on the Saturday preceding Father’s Day until 6.00pm on Father’s Day.
Notwithstanding the foregoing:
(a)when [X] is three years old, she may spend three holidays of five days each with each of her parents at times to be agreed and in default of agreement:
(i)with the father for five days commencing at 6.00pm on the Friday before the first Saturday that [X] would be due to spend with her father during the Victorian school term holidays; and
(ii)with the mother for five days commencing at 6.00pm on the Monday during the Victorian school term holidays that [X] will not be on holiday with her father; and
(b)when [X] is four years old, she may spend three holidays of seven days each with each of her parents at times to be agreed and in default of agreement:
(i)with the father for seven days commencing at 6.00pm on the Friday before the first Saturday that [X] would be due to spend with her father during the Victorian school term holidays; and
(ii)with the mother for seven days commencing at 6.00pm on the previous or subsequent Friday such that [X] will be on holiday with her mother during the other week of the Victorian school term holidays.
Changeover occur at [X]'s child care or school where practicable and otherwise at the father's home unless he moves more than five kilometres from his current address when changeovers not at [X]’s childcare or school are to occur at the mother’s home.
If [X] will not be spending a night at a parent’s home, the relevant parent notify the other in writing seven days in advance of:
(a)the address and contact details of the place where [X] will be staying;
(b)the details of the flight or other means of transportation to the place where [X] will be staying.
If [X] is to be away from a parent for more than seven days, the other parent is to ensure that [X] speaks to the first parent by telephone at least once each week.
The mother within seven days ensure that [X]’s passport is delivered to the Registrar of this court who is requested to hold [X]’s passport until further order.
Until further order, the father and his servants and agents are restrained from removing or attempting to remove [X] from the Commonwealth of Australia.
Until further order, the mother and her servants and agents are restrained from removing or attempting to remove [X] from the Commonwealth of Australia.
The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain [X]’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain [X]’s name on the airport watch list until further order of the court.
The father, at the request of the mother, from time to time, sign all necessary documents to enable [X] to have a valid Australian passport.
Except for the purposes of changeover in accordance with order 13 hereof, the father be restrained from knowingly being within 100 metres of the mother’s home without her prior consent in writing.
The father and the mother consult each other prior to enrolling [X] in any organised activity during the time [X] spends with them.
If a parent thereafter enrols [X] into an organised activity, such parent provide the other parent with all contact information, confirmation of enrolment and dates and times for the activity, and ensure the other parent is fully apprised of all the activities [X] is undertaking with each parent from time to time.
Save for in emergencies, both parents continue to facilitate [X] attending [surgery omitted], for all general practitioner consultations.
[X]’s immunisation books and any other medical records remain in the possession of the mother and the mother continue to be responsible for arranging all of [X]’s immunisations, maternal and child health check ups and any other routine medical appointments.
For the purposes of this process, the mother is to arrange all such appointments and thereafter she is to promptly notify the father of the appointment details.
The father is at liberty to attend the arranged appointments with the mother and [X] should he wish to do so.
In the event that [X] requires medical care or becomes seriously ill or injured whilst in the care of either parent, such parent shall ensure the other parent is notified forthwith and facilitate the other parent communicating with [X]’s treating health provider.
Unless the parties otherwise agree, [X] be enrolled in [T] Childcare kindergarten and she commence attending 3 year old kindergarten at the commencement of Term 1, 2010.
The father and the mother be at liberty to provide a copy of these orders to the manager or principal of any childcare centre, kindergarten or school attended by [X] from time to time.
Subject to the discretion of the manger or principal, and subject to each parent being responsible for meeting any associated costs, the father and the mother be at liberty to:
(a)receive copies of all childcare/kindergarten/school reports, notices, newsletters and like correspondence customarily provided to parents; and
(b)attend all childcare/kindergarten/school concerts, functions, parent teacher interviews and any other events customarily attended by parents.
Until such time as the parents otherwise agree in writing, the parents are to continue using a communication book for the purposes of communicating brief factual messages in respect of the issues concerning [X]’s care, welfare and development.
The communication book is to be passed over with [X] at changeover and the communication is to include, but not be limited to, details of the following:
(a)the sleep that [X] had that day;
(b)the meals [X] has had and when they last occurred;
(c)any special child activity [X] has undertaken during her time with each parent;
(d)details of any symptoms if a parent suspects [X] may be unwell; and
(e)toilet training progress notes.
In the event that either parent moves residence or his or her contact details vary, that parent forthwith notify the other parent in writing (when practicable at least 14 days prior to the change occurring) of any variation to his or her residential address, mobile telephone number or email address.
The father and the mother each be readily contactable to the other parent, by ensuring his or her mobile telephone remains charged where practicable and promptly returning any messages that may be left by the other parent from time to time.
The father, the mother and his and her servants and agents are restrained from:
(a)harassing, verbally abusing, denigrating or threatening the other parent; and
(b)discussing the making of these orders or future care arrangements for [X];
in the sight, hearing or presence of [X].
AND THE COURT NOTES THAT:
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Hopkirk & Hopkirk is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7678 of 2008
| MR HOPKIRK |
Applicant
And
| MS HOPKIRK |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [X] who was born [in] 2006 and who is now almost 3 years old. [X]'s parents began living together in Melbourne on 20 September 2000 and married in England [in] 2003. They returned to Melbourne to live. The parents separated for the period August to November 2005 but then reconciled. As noted, [X] was born on 17 November 2006.
The father took paternity leave for about one month. The mother took maternity leave for a few months and returned to work part time in March 2007. [X] commenced at child care, but for a period of time, the father cared for her one day a week and at various other times as well. The father said that he formed the view that the mother was not coping very well. Commencing in November 2007, the father took four months annual leave followed by four months sick leave. He said the reason was to enable him to care for the mother and [X].
However, the father provided a report dated 3 September 2008 from a Dr B which said that she had recommended that the father take sick leave to help him consider various issues including whether to leave his job. In view of that evidence, I consider that the father’s time off work at that stage was more to do with his own situation than the mother’s.
In February 2008, the family moved to Mooloolaba in Queensland, where the paternal grandparents live. The mother and [X] went to England to visit [X]'s maternal family between 30 March and 17 April 2008. On 8 May 2008, the mother and father separated permanently.
After separation, the mother went to Melbourne to establish a home. [X], who was then about 18 months old, spent some time in the care of her father. On 5 June 2008, [X] and her mother returned to Melbourne to live. On 9 July 2008, the father also returned to Melbourne to live.
While [X] was living in Melbourne and the father was living in Queensland, they spent time together as follows:
a)8 to 10 June 2008 in Melbourne;
b)13 to 16 June 2008 in Queensland;
c)19 to 23 June 2008 in Melbourne; and
d)1 to 5 July 2008 in Melbourne.
On or about 21 June 2008, the mother prepared a roster whereby [X] would spend each Sunday, Monday and Tuesday with her father, and each Wednesday, Thursday, Friday and Saturday with her mother. The roster also provided for [X] to be in childcare on Tuesdays, which she would otherwise spend with her father, and on Thursdays, which she would otherwise spend with her mother. That arrangement was short lived. The mother said that, initially she had been inclined to have a more or less equal shared care arrangement for [X] but she then discovered that such an arrangement was not suitable in view of [X]’s developmental stage.
On 22 August 2008, the father filed the present proceedings in the Family Court. The father sought equal shared care of [X]. In particular, he sought orders that [X] live with him:
a)from 7.30am each Monday to 8am each Wednesday;
b)from 7.30am each Thursday to 8am each Friday; and
c)fortnightly from 8am Sunday to 7.30am Monday.
In her response, the mother essentially sought orders that [X]:
a)live with her mother; and
b)spend time with her father from 9am Sunday to 5.30pm Monday each week.
On 30 September 2008, the matter came before Senior Registrar FitzGibbon, who noted that the father was [employed in the Law Enforcement Industry] who worked on Wednesday, Friday and Saturday each week, while the mother worked [in the Administration Industry] on Mondays, Tuesdays and Thursdays. The father wanted [X] to spend Tuesdays and Thursdays with him rather than in childcare. The mother wanted [X] to spend time with her father from 9am Sunday to 5.30pm on Monday.
The Senior Registrar made an interim order by consent for equal shared parental responsibility and made interim orders after a contested hearing that:
a)[X] live with her mother;
b)[X] spend time with her father from 9am each Sunday to before childcare each Tuesday, when the father was to take [X] directly to the childcare centre; and
c)[X] and her parents attend upon a family consultant for an assessment.
That amounted to four nights a fortnight with the father.
An assessment was prepared by Mr Steve Atkinson on 7 November 2008, after observing [X] interacting with each of her parents. Mr Atkinson noted the following:
a)Both parents express their love and concern about [X] and appeared to be genuine in wanting the best for her.
b)Observations of both parents interacting with [X] indicate that each parent is insightful as to their daughter's physical needs.
c)That both parents were insightful to such an extent impressed the family consultant and says much about [X] been fortunate to have such parents.
d)[X]'s attendance at day care appears to have a considerable role in perpetuating the current dispute.
e)Both [parents] lack both confidence and trust in each other following their separation.
f)[X] needs to have an opportunity to consolidate a secure base with her primary caregiver, in this case her mother, and from which she can then safely explore her secondary attachment with her father. In the event [X] is prevented from having such opportunities, along with ongoing exposure to her parents’ conflictual relationship, it is likely that [X] will experience developmental burdens beyond the impact of her parents’ separation.
g)In the event the conflict and lack of communication continues it is likely that [X] will become increasingly caught between her parents …. … This has the potential to have dire consequences for [X] ….
h)As [X] matures she will increasingly be placed in a position of either aligning herself with one parent or being confused about where she fits into a broader family structure. The developmental burdens of such a situation can have long-lasting effects on a child of [X]’s age such that it can compromise her attachment with her parents which then affects her self-confidence. Were this situation to arise it would be entirely contrary to what [the mother and father] want for their daughter.
In other words, Mr Atkinson made the observation that is frequently made by experts and frequently ignored by parents, namely, that parental conflict can be extremely damaging for the proper emotional and psychological development of young children. It is a sad fact that a few parents who are otherwise self-sacrificing and devoted persist in conflicts over issues that, regardless of how they are resolved, will have a marginal influence on their children's emotional and psychological development while the parental conflict itself may cause devastating harm to their greatly loved children.
Be that as it may, the matter returned to Senior Registrar FitzGibbon on 11 November 2008. At that stage, it appeared that the father had not been delivering [X] to childcare at about 9am each Tuesday, but had been delivering her at about 3pm, just in time for her mother to collect her. The mother had been telephoned on occasion by the childcare centre to say that [X] had not arrived, and the mother had been unaware that [X] had been safely with the father.
The Senior Registrar made a number of fairly standard orders by consent, and also ordered on an interim basis that:
a)[X]'s time with her father conclude at 9am each Tuesday, rather than before childcare as the previous orders had stated; and
b)[X] spend from 8am to 5.45pm each Thursday with her father, instead of spending that time in childcare.
The net effect of these orders was that:
a)[X] would spend Tuesdays but not Thursdays in childcare;
b)
[X] would spend with her father from 9am each Sunday to
9am each Tuesday and from 8am to 5.45pm each Thursday; and
c)[X] would live at other times with her mother.
The proceeding was transferred to this court. The matter was heard in the duty list on 6 January 2009. On that date, an order was made by consent that [X]'s passport be held by Marshalls & Dent, solicitors for the mother, and not be released without the written consent of both parents or a court order. The father was represented by solicitors until about one month before the final hearing in this matter.
The proposals of the parties
The father was unrepresented. At the final hearing, he indicated that he wished to apply for the orders set out in his case outline as amended. The mother sought the orders in her amended response filed on
3 August 2009.
In summary, [X]'s parents agreed that they should have equal shared parental responsibility for her and that [X] should live with her mother, at least for the time being.
Otherwise the father sought orders that [X] spend time with him:
a)each alternate Sunday from 9am to Wednesday at 8am;
b)each alternate Monday from 8am to Wednesday at 8am; and
c)each Thursday from 3pm to 6pm.
This amounts to five nights each fortnight and one afternoon each Thursday. The father's proposal would mean that [X] would spend time in childcare one day per week, on Thursdays, until 3pm.
The mother sought orders that [X] spend time with her father:
a)each alternate Saturday from 5pm until Monday at 6pm;
b)each alternate Monday from 7.30am until 6pm; and
c)each Thursday from 3.30pm until 6pm.
This means [X] would spend with her father two nights each fortnight plus all day each Monday and one afternoon each Thursday. The mother's proposal would mean that [X] would spend two days each week in childcare, although on the Thursday she would be picked up at 3.30pm.
In addition, the father proposed that, once [X] starts school, she be cared for by both of her parents equally. The mother opposed that order on the grounds that it was too early to say what would be suitable for [X] when she starts school.
The father proposed that changeovers take place at childcare or at his home. The mother proposed that changeover occur at [X]'s kindergarten or school where practicable and otherwise at the father's home unless he moved more than five kilometres from his current address when changeover should occur at the mother’s home.
The father sought an order that [X] be permitted to travel to Queensland to visit her paternal grandparents each alternate month between 8am Saturday and 8am Tuesday upon the father giving the mother 14 days notice of departure and arrival times and the contact address and telephone number in Queensland. The mother opposed this order, saying it was an attempt to gain additional time by stealth.
The mother proposed that each parent be able to have three holidays with [X] of five nights when she was three years old, and of seven nights when she was four years old. Upon [X] commencing school, the mother proposed that she spend half school holidays with each parent.
The father proposed that [X] be prohibited from leaving Australia and that he keep her passport. The mother proposed that she be permitted to travel overseas with [X] in 2009 and each alternate year thereafter to visit her family for three weeks. The mother proposed that she should retain [X]'s passport, that the parties should be required to sign all documents to ensure that [X] has a valid Australian passport at all times until she is 18 years old, and that the Registrar of the Court be appointed to execute the necessary documents if the father or mother refused or neglected to sign them.
The father sought orders that the parties be required to attend joint therapeutic counselling until they and the counsellor agree that they are able to successfully co-parent [X] with the cost of the counselling to be borne equally by the parties. The mother opposed that order.
The father sought that any orders be reviewed in 12 months time. The mother opposed that order.
The mother sought numerous other orders of a detailed nature, most of which the father did not oppose. Those proposed orders are addressed further below.
Affidavits
The father relied on his affidavits sworn on 22 August 2008,
25 September 2008and 6 November 2008. The mother relied on her affidavit sworn on 3 August 2009. Both parties cross-examined Dianne Dockeary, who swore an affidavit on 27 July 2009 to which was exhibited her family report.
The family report
Ms Dockeary noted that the father’s proposal at that stage was for [X] to spend six nights each fortnight with her father, but that he intended to seek eight nights each fortnight. Ms Dockeary noted that the mother proposed that [X] spend with her father from 9am Sunday to 5.30pm Monday each week, amounting to two nights a fortnight. Ms Dockeary was apparently not told of the father’s current proposal, which includes five nights each fortnight for now and equal shared care once [X] starts school. Ms Dockeary’s report did not directly address whether equal shared care would be in [X]’s best interests once she starts school.
The family report interviews were conducted when [X] was two years and eight months old. Ms Dockeary observed that [X] was settled, happy and attached to both parents. Ms Dockeary observed that [X] separated well from her mother and greeted her father with a big smile. At the appropriate time, [X] separated readily and easily from her father and returned to her mother. Ms Dockeary considered that [X]'s “behaviour indicated confidence and familiarity in her relationship with her father.”
Ms Dockeary considered that [X]'s behaviour with each parent was unremarkable, in that she seemed to enjoy a close and affectionate relationship with both parents. Ms Dockeary observed that the mother and father were both attentive and affectionate towards [X].
Ms Dockeary considered that [X] was confident and content with each of her parents. Ms Dockeary considered that the fact that [X] was able to readily separate from both of her parents indicated that she enjoyed a secure relationship with both of them.
Ms Dockeary considered that the father displayed little insight into his own feelings and considered that it was not entirely evident that he was able to place [X]'s needs above his own. Ms Dockeary said that the father’s primary motivation seemed to be to align [X]’s living routine with his work commitments. That view was not borne out by the evidence. On the contrary, I consider that the father has made every effort to make his work fit in with his wish to care for [X] for as much time as possible.
Ms Dockeary considered that the mother spoke with the confidence, understanding and insight of a parent who had provided for [X]'s daily needs and seemed particularly mindful of [X]'s emotional needs and the need to provide a secure base and consistency of routine for [X].
Ms Dockeary also considered that the mother appeared to be intimidated by the father, and noted the mother’s claim that he was controlling.
In her conclusion, Ms Dockeary said:
[X] is at a sensitive age where it is crucial that her developmental needs are met. A lack of consistency, stability and predictability may have a longer term adverse impact on her emotional development.
These needs are met by adherence to a strict and consistent routine in areas such as toileting, meal times, eating habits, bedtime, sleeping habits, bath time, and so on. Such predictable, consistent routines are more easily achieved by the child residing primarily in one home.
Already for this child since the marital separation in May 2008, when [X] was 18 months old, disputes have arisen over her routines; with an ongoing dispute over her attendance at childcare.
It is important that [X] not feel anxious or distressed; and, equally important, that she establishes a secure base from which to experience the world. Otherwise there is a risk of [X]'s emotional development and ability to sustain future relationships being compromised and further developmental milestones not being met as she matures.
Relationship between the parents-
Currently the necessary level of cooperation, the shared values and ideas, are not present. The nature of the parental relationship does not lend itself to sharing of information. As such, [X] is likely to experience a lack of follow through and consistency, a lack of reliability, and lack of predictability of routine across the two households.
Parents’ capacity to care for the child-
Both parents have generally expressed goodwill towards each other in their parenting roles. [The mother] has impressed as being more attuned to the child's emotional needs ….
…
There is also a sense that both parents perceive their parenting roles somewhat differently…. … they need to achieve complementary parenting roles. As it stands, they each parent as a single parent with no integration for the child across the two households.
Ms Dockeary recommended that [X] live primarily with one parent and that parent be the mother. Ms Dockeary recommended that [X] spend time with her father frequently and with minimal intervals. More particularly, Ms Dockeary recommended that [X] spend time with her father:
a)from 4 or 5pm on alternate Saturdays, or, if that did not suit the father, from 9am on alternate Sundays, to about 6pm on the following Monday;
b)on the other Monday from the morning until 6pm or, if the father were willing to take [X] to childcare on Tuesday, until 6pm the following Tuesday; and
c)each Thursday or each alternate Thursday from say 3.30pm to
6pm.This recommendation amounts to a minimum of one night a fortnight to a maximum of three nights a fortnight plus each Thursday for two and a half hours. Ms Dockeary said that the arrangement she proposed lent itself to a transition to alternate weekends once [X] started school.
Ms Dockeary’s oral evidence
Under cross-examination by the father, Ms Dockeary agreed that she had not read the mother's affidavits at the time that she conducted the interviews for the purpose of the family reports, namely, on 10 June 2009. In fact, Ms Dockeary agreed that she had not read the mother's affidavits until between 14 and 20 July 2009, shortly before she wrote her family report. However, Ms Dockeary said that she did not put a great deal of weight on affidavit material, but only used it to ascertain the flavour of the dispute.
Ms Dockeary agreed that she had read a summary of some subpoenaed material that the father’s then solicitor had asked her not to read.
She said she had asked the solicitors to reach an agreement on what she should read, but when no agreement was forthcoming, she read everything that had been provided to her. Ms Dockeary said that she did not seek to determine the truth of the various matters the parties stated to her or stated in their affidavits, but left that for the court.
The summary was not tendered to the court. I do not know what it contained or whether it was a fair summary.
The father asked Ms Dockeary whether she preferred a child to be cared for by a parent or in childcare. Ms Dockeary said there was no general rule and it depended on the circumstances.
The mother submitted that the father had cross examined Ms Dockeary about equal time once [X] starts school. However, I have been unable to find any canvassing of that issue in the transcript. The mother, in her cross examination of Ms Dockeary, noted that her recommendations were largely based on [X]’s tender age and developmental needs, and then referred to “the foreseeable future”. Ms Dockeary responded in terms of [X]’s need to establish a secure attachment to a primary carer. In the normal course, [X] will have moved on to a further developmental stage once she starts school.
All in all, I consider that Ms Dockeary did not squarely consider equal shared care once [X] starts school. Ms Dockeary’s recommendations were firmly based on [X]’s present developmental needs. Ms Dockeary did not expressly and in detail consider whether it might or might not be in [X]’s best interests for the arrangements regarding her to change over time.
The mother’s allegations that the father was a risk to [X]
The mother and father separated on 8 May 2008. By letter dated
27 August 2008(exhibit A1), the mother’s solicitors advised the manager of [X]'s childcare centre, [T], that:
a)the father's time with [X] had been suspended after he failed to return her to the mother at the agreed time;
b)the father's behaviour was “becoming increasingly concerning”;
c)the mother requested that [T] only take instructions from the mother;
d)the mother requested that [T] not allow the father to remove [X] from [T];
e)the mother held grave concerns that [X] might be at risk of harm if the father were permitted to collect her from [T].
In the letter, the mother’s solicitor requested that, if the father attended [T], [T] should ask him to leave and if he refused to do so [T] should call the police.
[T] reported the mother's allegations to the child protection authorities on or about 28 August 2008. An internal email of [T] (exhibit A2) dated 28 August 2008 with the time of 10.31am records that:
Child protection called [the mother] to discuss the matter and [the mother] reassured them that the child was not at risk.
A second internal email of [T] dated 28 August 2008 with the time of 11.14am records a discussion between Ms R and the mother as follows:
[The mother] explained that she did not feel that [the father] would ever intentionally cause harm to [X] however she felt that he was ‘using [X] to get to mum.’
She explained to me that she felt that [the father] could be suffering from a mental illness such as Bi-Polar but that she also believed that he genuinely loved her and would not cause her any harm. She told me that although the thought was always in the back of her mind her main concern was that he would take her for longer than he should without calling etc.
[The mother] thanked us for the support and appreciated our concern to [X]. She told me that she understood why we called Child Protection and … that she understood our situation, in that we could not legally stop [the father] from taking [X] from the centre.
The mother did not dispute the contents of the letter or the emails. The net effect of them was that the mother had made some alarming insinuations against the father without any proper basis for them. In relation to the claim that the father had not returned [X] to the mother at the agreed time, the oral evidence was that the father was operating on the basis that the agreement between the parents reflected in the roster was ongoing and the mother was operating on the basis that the agreement had been terminated.
Notwithstanding that the mother told [T] on 28 August 2008 that she thought the father would not cause [X] any harm, the mother swore an affidavit on 17 September 2008 in which she said that she feared for [X]'s safety while she was in the father’s care and she felt that the father suffered from “behavioural abnormalities, split personality disorder or similar”. The mother also said in her affidavit:
The husband is [employed in the Law Enforcement Industry] and therefore is in possession of a gun. I am concerned that in his current mental state he could be harmful to himself, me or the child. …
… at this stage I hold the following fears:
a.That the Husband is unpredictable, aggressive and emotionally abusive and suffers from a mental condition that precludes him from caring appropriately for the child for long periods of time;
…
f.That the Husband has possession of a weapon as a result of his employment [in the Law Enforcement Industry]; and
g.That I am afraid of the Husband having endured many years of verbal and mental abuse and control and I wish to protect the child from such abuse.
No psychiatric evidence was presented to the court to the effect that the father suffers from bipolar disorder or a split personality disorder. Notes were subpoenaed from Dr B, an occupational physician, who attended the father on a number of occasions between April 2008 and March 2009. The notes indicate that the father was considering leaving [occupation omitted] and was suffering some anxiety in connection with making that decision and some uncertainty in relation to the stability of his marriage.
Dr B’s patient assessment, which seems to have been completed in about April 2008, indicated that the father’s mental state was normal. In relation to a question on a form about whether the father showed any suicidal tendencies or risks to others, Dr B had written “no suicidal thoughts” and had made no comment about whether the father was a risk to others. Dr B said that at the time of the assessment, the father’s thinking was normal, his attention and concentration were good, his memory was unimpaired, his insight was good, his mood was tense, his affect was controlled, brittle, his motivation was within normal limits, his judgment was unimpaired and his anxiety symptoms consisted of tense presentation. In a section headed risk assessment, there was a horizontal line in a box next to the words “Risk to Others.” Dr B's conclusion was that the father had an adjustment disorder and needed counselling to assist with coming to a decision about whether to resign from [occupation omitted].
All in all, the mother's allegations about the father having bipolar disorder, a split personality or another serious mental illness were not substantiated, and the mother had no reasonable basis for making them.
When cross examined about her fear of the father because he had access to firearms, the mother said that she did not recall ever having said that. When taken to the passage in her affidavit in which she stated that the father had possession of a weapon because of his employment [in the Law Enforcement Industry], the mother said that her affidavit did not say that she was fearful of the father because of his access to firearms and she said she presumed that all [occupation omitted] have access to firearms.
When taken to the passage in her affidavit where she said that she held certain fears, and mentioned the father's possession of a weapon, the mother said, “Okay, I did, then.” She said that maybe she was fearful when she swore the affidavit but she was no longer fearful that the father would misuse his weapon. However, the mother went on to say that she did not know what the father was capable of and that his behaviour can be unpredictable. When pressed, the mother conceded that the father's access to firearms had never been an issue in the eight years that the mother and father had spent together.
I consider that the mother made reference in her affidavit to the father having access to a gun and implied that she had reason to be fearful of him misusing a gun when she in fact had no reasonable basis for doing so.
The mother's allegations of the father’s threatening and dominating behaviour
On 30 September 2008, before Senior Registrar FitzGibbon, the mother’s solicitor told the court that the father had attended the mother’s home without her consent, barged through the door, threatened not to return [X] and was very aggressive and threatening towards the mother. Under cross-examination, the mother conceded that the father had not barged through the door but maintained that he had been verbally aggressive. The mother reiterated that the father had threatened her.
When asked about the nature of the threats, the mother said that she had asked the father to provide her with his superannuation details and the father had demanded in exchange the mother's medical records. The mother confirmed that the father had not threatened her physical safety but said that she felt bullied and intimidated. In particular, the mother said that on one or two occasions the father had threatened not to return [X] to her.
As discussed above, the parents had divergent views of the arrangements regarding [X]'s time with each of them. The father seems to have been operating on the belief that the roster that the mother had prepared represented an ongoing agreement and the mother seems to have been operating on the belief that the agreement encapsulated in the roster had been terminated.
I do not accept that the father, in the instances under discussion, made anything that could properly be described as a threat towards the mother. Rather, he sought to rely on what he wanted to be an ongoing agreement, and, in relation to the superannuation details and medical records, he sought information in return for any information that he gave. This sort of behaviour is better described as taking a hard negotiating position than engaging in threatening behaviour.
However, hard negotiating positions are not appropriate where two people will need to work together for many years to properly parent their child. The only decent approach in such cases is to be abundantly fair and reasonable.
I accept the mother’s evidence that the father was verbally abusive. The mother exhibited a diary to her affidavit sworn on 17 September 2008. It recorded the father, during the relationship, referring to the mother as a “fucking whore” and a “lazy cunt”. The father did not dispute that evidence.
The mother also alleged that the father, on the day of separation, threatened to have her arrested if she attempted to take [X] to Melbourne, although, later, the mother did take [X] with her. I accept that the father may have made the threat alleged in the context of a highly emotional situation.
The mother also alleged that the father had misused his position [in the Law Enforcement Industry] to ascertain her landline telephone number and to discover that she was undertaking higher duties at work. The father said these were serious allegations that would warrant disciplinary action against him. That is correct. Accordingly, the Briginshaw principle must be borne in mind.
On that basis, I consider that there is insufficient evidence for me to accept the mother’s allegations about these matters. I suspect that the mother’s perception of the father’s actions is accurate. They seem to me to be in keeping with the father’s overall approach to his disputes with the mother. However, there is a big difference between a suspicion and being sufficiently satisfied to make a finding.
The father’s allegation of sexual abuse
In December 2008, the father alleged that, in December 2007, he had seen the mother’s stepfather, Mr C, masturbating in [X]'s presence.
Mr C and the maternal grandmother lived in England but had been visiting the family in Australia for Christmas. After the alleged incident, the father agreed to [X] and the mother visiting Mr C and the maternal grandmother in England during April 2008. The father claimed that the mother had agreed to be careful with [X] in the presence of Mr C. The mother denied that she made any such agreement. In view of the subsequent events, I prefer the mother’s evidence on this matter.
The father appeared in court personally and obtained an interim intervention order against Mr C. The final hearing of the matter occurred in March 2009. Mr C returned to Australia for the hearing. The magistrate did not accept the truth of the father's allegations, saying that they had been made in bad faith. The magistrate noted that the father had obtained the interim order on an ex parte basis and had purported to be an independent and objective [Law Enforcement employee] when he in fact was an interested party. The magistrate awarded indemnity costs of $4150 against the father.
The father did not pursue the allegation against Mr C in this court. The mother raised the matter as an example of the father's difficult behaviour since separation. In the absence of any attempt by the father to substantiate his allegation against Mr C, I conclude for the purposes of these proceedings that the father made a very serious and unfounded allegation against Mr C.
Therapeutic counselling
On 11 November 2008, Senior Registrar FitzGibbon ordered the parents to participate in joint therapeutic counselling. The order did not expressly require the parents to attend as directed by the therapeutic counsellor. However, it is implicit in the order that they were required to do so.
It is common ground that the parents participated in one joint session of therapeutic counselling. The mother then wanted to have individual counselling and the father wanted to continue with the joint sessions. The mother told court that she did not feel they obtained any benefit from the therapeutic counselling. The mother told the court that the father refused to participate in individual sessions.
The parents were required by order of the court to participate in joint therapeutic counselling. They did not have a choice about it. They were required to attend as directed by the therapeutic counsellor, whether for joint sessions or individual sessions as the counsellor saw fit.
As therapeutic counselling is confidential, there was no evidence about the precise circumstances that resulted in the therapeutic counselling being terminated after only one session, and, in particular, whether the therapeutic counsellor had directed the parties to attend an individual or a joint session on the next occasion.
It is very unfortunate for [X] that her parents did not persist with the therapeutic counselling. If they had, there may have been no need for a hearing before the court and the communication and cooperation between [X]'s parents might be a good deal better than it is at present.
It is in [X]’s best interests that her parents attend therapeutic counselling to assist them to deal with their communication and cooperation problems. It is also in [X]’s best interests that each of her parents attend such other counselling as the therapeutic counsellor might recommend for their individual needs. It is in [X]’s best interests that each parent pay for their individual counselling and for half of their joint counselling. There will be orders accordingly.
The standard of communication and cooperation between the parents
It is obviously of the utmost importance for [X] that her parents are able to communicate and cooperate with each other about basic aspects of her care. [X] is not quite three years old. She is at an age where a stable routine is very important for her comfort and proper development. [X] needs her parents to be able to communicate with each other about her sleeping patterns, her progression to sleeping in a bed, the approach to her toilet training, any issues concerning her health and a myriad of other details about [X]'s daily life. Sadly for [X], her parents so far have had a poor standard of communication about matters of great significance to her.
The mother said that the father frequently refused to engage in any discussion. I accept that claim. It seems to me to be consistent with the father’s presentation in court.
The mother said that the father had taken [X] to a paediatrician, a speech pathologist, a general practitioner and an audiologist without consultation with the mother. The father denied that he had taken [X] to any health professionals without telling the mother. The father said that he would bring the communication book to court the next day and show where the relevant entries were. The father had the communication book in court the next day. However, he did not seek to tender the communication book, despite being asked if he wished to do so, and did not produce the relevant entries to the court. In the circumstances, I do not accept the father’s claims about these matters.
There was no medical evidence that [X] had any health problems that would warrant the father taking her unilaterally to any health professional. On a number of occasions, the mother only discovered [X] had attended the health professionals after the event.
The mother alleged that the father failed to regularly comply with the order of 11 November 2008 which specifically required the parents to detail in a communication book the sleeps and meals that [X] had had on the day of changeover, any activity she had participated in during her time with the parent completing the communication book, and any progress or problems with [X]'s toilet training. The father cross examined the mother in relation to the communication book but declined to tender it to the court. I accept the mother's evidence on this matter. It was not effectively challenged.
In particular, I accept the mother’s evidence that the father did not tell her that [X] had started to sleep in a bed at his house rather than in a cot, and that the mother only discovered this fact from the family report. The father claimed that he told the mother verbally about [X]’s move to a bed. I do not accept the father’s claim. In any event, court orders required the father to record such matters in the communication book.
I also accept the mother’s evidence that the father failed to tell her about the particular activities that [X] participated in when she was with him, such as swimming. Recently, the father has taken [X] to kinder gym on Mondays. However, previously, the father had taken [X] to swimming classes on Mondays. The father told the mother via the communication book that he was taking [X] to kinder gym but did not tell the mother that he had stopped taking [X] to swimming classes. He conceded that the mother had no way of knowing that he was no longer taking [X] to swimming classes. The father accepted that the mother had wanted to take [X] to swimming classes but did not do so because she understood that the father was taking her.
The fact that the father was not taking [X] to swimming classes any longer only emerged during cross examination. This is obviously very unsatisfactory. It is a matter of basic safety that each of [X]’s parents keeps the other informed of [X]'s abilities in water.
The mother said that, once the father was taking [X] to childcare, he refused to take a bag for her containing a change of clothes, despite repeated requests from the mother and the childcare. Ultimately, the mother said that she decided to drop off a bag at childcare when the father delivered [X] because the father would not do so.
The father said that he had taken a bag for [X] but the mother had said that its contents were inadequate, because, for example, the clothes were too small, or not appropriate for the weather. He agreed that the matter was resolved with the mother taking a bag to childcare for [X].
The mother also said that the father would refuse to sign [X] in at childcare. The father agreed that he had not signed her in. He said that it was just not something that he was doing.
I prefer the mother’s evidence about the bag. Her evidence was supported by a contemporaneous solicitor’s letter, which also addressed the question of the father failing to sign [X] in at childcare.
I consider that, in relation to the bag and not signing [X] in, the father was being difficult and obstructive because he objected to [X] attending childcare when he is available to look after her.
The mother also said that the father had tried to pressure her to not send [X] to childcare on three Tuesdays, being 23 and 30 June and 14 July 2009, by telling her on the Monday evenings that [X] was too sick to attend childcare. The mother said that she arranged time off work on each occasion, only to find that [X] was in fact well enough to go to childcare. The father disputed that [X] was well enough for childcare. However, he did not produce any medical evidence that she was too sick on the relevant days to attend childcare. I accept the mother’s evidence on this matter. I consider that the father attempted to inconvenience the mother and manufacture a situation where [X] would not attend childcare because he did not want her to attend.
The father acknowledged in his oral evidence that he and the mother did not get along. He said he was trying to establish communication and lack of conflict but felt constantly impeded by the mother. For her part, the mother said that she felt bullied and intimidated by the father.
It is rare for problems with communication and cooperation to be entirely the fault of one party. Neither parent in this case seems to fully appreciate that [X] needs them both to be more yielding, and to focus on her needs rather than their own positions. Above all, [X] needs her parents to be able to communicate and cooperate with each other.
It seems to me that the father and mother are both very determined to have their own way. They are able to portray their wishes in terms of [X]’s best interests, but, in reality, they just want the other parent to fall into line. They are both willing to use underhand methods to achieve their goals.
The father needs to understand that, while it is perfectly legitimate for him to seek to persuade others of the benefits of his point of view, it is completely unacceptable for him to try to force his views on others.
The mother’s solicitor’s letter to [T], and her insinuations in her affidavit material and in her solicitor’s submissions to the court that the father was a physical threat to her and [X] were unjustified and inflammatory. Such actions are likely to undermine effective communication and cooperation.
[X]'s experience of childcare
[X] has attended childcare for one or two days each week since she was six months old. Presently, [X] attends [T] on Tuesdays. The mother exhibited to her affidavit sworn on 3 August 2009 a report on [X] from [T].
The report contains an observation of [X] on 17 February 2009, to the effect that [X] and another girl, [Y], really enjoy each other's company and run off to play together. They walk around the yard hand in hand and find things in the grass to look at and talk about. The report contains some photographs of [X] and [Y] hand in hand outside. The entries for a number of other days refer to [X]'s activities with [Y].
The report also contains an entry for 15 June 2009. It said that [X] is focused on her social and emotional development and that she had come out of her shell and enjoyed role modelling with her close friends, completing puzzles and painting. The report noted that [X] showed some signs of uncertainty in social situations where she often held back. However, the report noted that the childcare centre would work on [X]'s self-esteem.
The father said that when he dropped [X] at [T], she was very clingy. He said that he often had to stay with her for a prolonged period until she was ready for him to leave. He accepted that [X] coped at [T], but said there was a difference between coping and wanting to be there.
The family report noted that the father had indicated that he did not enjoy being the parent who takes [X] to childcare, saying, “I am the bad guy who drops her there and it affects me.” The father said in oral evidence that he had actually said that it affected his relationship with [X] but otherwise agreed the family report was accurate on that point.
The father denied that his reluctance for [X] to spend time at childcare was based more on his need to spend time with [X] than on [X]'s preferences. He accepted that it was not unusual for a two or three-year-old child to hold back in social situations. However, the father considered that a child developed better socially with someone being there to look after her all the time rather than with strangers who were looking after a large group of children.
All in all, I consider that [X]’s experience of childcare is positive. Her clinginess when dropped off at childcare is normal. It does not mean that [X] does not gain a lot from her interaction with other children her own age once she settles down. She would no doubt settle down more quickly if the father left her more quickly.
[X] holding back in some social situations is not necessarily a cause for concern. Some people are just more socially cautious and reserved than others. Alternatively, it may be that if [X] spent more time at childcare, she would be more familiar with the other children and interact with them more.
[X]'s activities with the father
The father said that, at present, [X] spends Mondays and Thursdays with him. He said that at about 10am on Mondays, they went to kinder gym at a leisure centre for about one hour. He said that immediately afterwards, the same group of people went to a café, which was also part of the leisure centre, for a mothers’ group. The mothers’ group also took about one hour. The father said that he then took [X] home for a sleep and afterwards they would just spend time together. The father said that there was much the same routine on Thursday.
Under cross-examination, the father conceded that on Monday 4 May 2009, when [X] was recovering from a cold, she attended swimming lessons, mothers’ group, Scienceworks, and a movie. The father said that the movie was at home in the afternoon. He said that if [X] preferred, they would spend the afternoon at home reading and doing puzzles for example.
The mother said that, when [X] was returned to her at 6pm on Tuesdays, [X] was unsettled. I accept that evidence. It is to be expected, given [X]’s developmental stage.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. Additionally, the court must consider the matters set out in subsections (4) and (4A). I will address those considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
There is no doubt that [X] benefits from having a meaningful relationship with both of her parents. They are both devoted to [X] and, except for their difficulties in communicating and cooperating with each other, have all of the appropriate skills for caring for a young child.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no suggestion that either parent would subject [X] to abuse, neglect or family violence. However, the parents acknowledged that their communication and cooperation were inadequate. They have major difficulty speaking to each other in a courteous and constructive way. While each blamed the other, we all know that relationships are two way. Sadly, the very poor standard of communication and cooperation between the parents could result in [X] suffering psychological harm in the long term.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Given [X]’s very tender age, she has not articulated any views.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
[X] has a good relationship with each of her parents. The father has some family in Melbourne and parents in Queensland with whom [X] spends time. The mother's family live in England. [X] has spent time with them as well. It appears that [X] has good relationships with all of her extended family.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Both parents seem to recognise the importance for [X] of her having a close and continuing relationship with her other parent. However, the mother wishes to restrict the time that [X] spends with her father, ostensibly to give [X] a more settled routine.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The various proposals before the court would not result in [X] being separated from either parent or anyone else. The proposals of the parties differ in matters of degree. The most contested variable is whether [X] should spend Tuesdays in childcare or with her father. In the absence of any expert evidence, it is difficult to say what the likely effect would be of a change in that regard. An eventual increase to equal time with her father is likely to deepen [X]’s relationship with him without diminishing her relationship with her mother.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no particular practical difficulty or expense in [X] spending time with each of her parents. They live within about 10 minutes’ drive of each other.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents are well able to provide for [X]'s needs, including her emotional and intellectual needs, except her need to have two parents who are able to communicate courteously and constructively with each other, and parent her in a cooperative manner.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
There is nothing to note in relation to this matter.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In most respects, both parents have demonstrated an admirable attitude to the responsibilities of parenthood. However, neither parent appears to accept that their responsibilities as parents include communicating with each other courteously and constructively and cooperating with each other in relation to their parenting of [X].
The mother also questions the father’s attitude to his responsibility to financially support [X], given that the father works only part time. The medical evidence showed that, as at 22 May 2008, the father was deemed to be fit to work only 48 hours per fortnight and to perform different duties to those he had previously performed. The medical evidence also indicated that carrying out general duties in the long term would be detrimental to the father’s health. However, the father conceded that he had no medical reason at present to work only part time, and had no medical reason as at January 2009 to work only part time. He said he was working part time at that stage to care for [X].
The reality is that mothers also have a responsibility to financially support their children. The mother also works only part time. It seems to me that where part time work provides adequate financial support for the children concerned, it may be an entirely responsible choice for one or both parents to work only part time.
The father maintains, and it does not seem to have been disputed, that he has paid the assessed amount of child support. However, there have been a number of proceedings to determine the correct level of child support. That litigation has added to the conflict between the parents.
This was not a child support case, and the various issues that are considered in child support matters were not thoroughly addressed in this proceeding. Accordingly, I am not able to form the view that either parent has been remiss in his or her financial support of [X].
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This matter has been addressed previously.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
There is no such order in this case.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Generally, it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings in relation to a child. That is because litigation is stressful and disruptive for all concerned and often does not achieve the desired outcome. However, it is not clear in the present case what order would be the least likely to lead to further litigation. Accordingly, it is not possible to determine whether it would be preferable to make that order.
Having said that, the mother submitted that no orders should be made about when [X] starts school, on the grounds that it was too early to say what her needs would be at that time. That could be said in all children’s matters, because it is in their nature to develop and change with every passing day. It seems to me that, to some extent, it would be preferable to make orders to deal with the arrangements for [X] as she grows, to minimise the prospect of further proceedings between the parties. They have already engaged in more than enough litigation.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
Except for the matters stated elsewhere, there are no other relevant facts or circumstances.
Section 60CC(4): Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii)communicating with the child; and
c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
These matters have been addressed previously.
Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The circumstances since separation have been addressed previously.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The parents agree in this case that they should have equal shared parental responsibility for [X]. I accept that it is in [X]'s best interests that her parents should have equal shared parental responsibility for her. There will be an order accordingly.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. That section provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The parents agreed that [X] should live with her mother, at least for now. The father did not seek equal time at present, but sought an order that [X] spends alternate weeks with him when she starts school. Ms Dockeary did not squarely address the issue of whether [X] should spend more time with her father as she gets older, except to say that her recommendations lent themselves to alternate weekends with the father once [X] started school. Ms Dockeary’s report was done without the knowledge that the mother had made a number of inflammatory and unjustified allegations against the father, for example, those contained in the mother’s solicitor’s letter to [T].
The family report and Ms Dockeary’s oral evidence were focussed on [X]’s present developmental needs. However, those needs will change a lot in the next three to five years. It would be undesirable for all concerned for the matter to come back to court when [X] starts school. Therefore, although it will involve some forecasting, it is in [X]’s best interests that orders are made now that will apply after she begins school.
The father accepted that [X]’s developmental needs are such that equal shared care would not presently be in her best interests. However, once she is older, the father submitted that equal shared care would be in [X]’s best interests.
The factors in favour of equal shared care are that [X]’s parents are both capable and committed, they live only 10 minutes drive from each other, and equal shared care would promote [X] having a meaningful relationship with both of her parents. The principal factors against an equal shared care arrangement are that the parents have poor communication and do not cooperate well with each other.
The father noted that, in Pilcher & Schneider (2008) FMCAfam 1092, orders were made for a child, who was not yet three years old, to be in an equal shared care arrangement once she started school, even though there were allegations of intimidation and poor communication between the parents. Brown FM at [270] noted that difficulties in communication were not an absolute bar to equal shared care, but one factor to take into account in the balancing exercise. His Honour relied on Astor & Astor (2007) FamCA 355. The father also referred to Trinder & Chiswick (2009) FamCA 729, where there were allegations of intimidation, bullying and poor communication. In that case, orders were made for the child to spend six nights a fortnight with the father.
The mother submitted that, notwithstanding the father’s cross-examination of Ms Dockeary on the question of equal shared care, she was not supportive of it in the present case, whereas the family consultant in Pilcher had been supportive of equal shared care. However, as discussed above, Ms Dockeary did not squarely deal with the issue of equal shared care once [X] is past her present developmental stage, but focussed almost exclusively on [X]’s current developmental needs. While Ms Dockeary noted that the father sought eight days a fortnight with [X], Ms Dockeary was apparently not aware that the father subsequently sought equal shared care after [X] started school. Accordingly, it cannot be said that Ms Dockeary either supported or opposed equal shared care for [X] at that stage.
The mother also submitted that Astor and Trinder were distinguishable because they concerned children who were 11 and 13 in the first case and nine in the second. The mother said that what was suitable for children at those ages was obviously not the same as what would be suitable for a two year old. That is right, and that is exactly why the father is not seeking equal shared care straight away.
The mother accepted that, once [X] starts school, it would be appropriate for her to spend half school holidays with her father. Accordingly, the mother did not object to [X] spending a week at a time, or indeed, three weeks, with her father, once she starts school. Also, the mother immediately after separation had agreed to a more or less shared care arrangement for [X]. It was only when she discovered that such an arrangement was not appropriate in view of [X]’s developmental needs that the mother changed her mind.
That is, the mother initially considered that the father was capable of properly parenting [X] on an equal time basis.
Neither party produced expert evidence to the court about the benefits and detriments of equal shared care. However, it is generally accepted that the benefits are more likely to outweigh the detriments for older children than for younger children. It is also generally accepted that it is physically and emotionally easier for younger children to have a single base and to spend limited amounts of time away from that base. It is also generally accepted that the first year of primary school is very tiring for young children.
Following the hearing, the court considered that it might be in [X]’s best interests to gradually increase the time she spends with her father to equal time by the time she is eight. As the orders the court was considering differed somewhat from the proposals of the parties, the court invited the parties to file written submissions. They did so. The father was broadly in agreement with the orders the court was considering. The mother opposed them largely on the basis that they required too much forecasting about [X]’s best interests.
It goes without saying that the needs and abilities of each child change over time. It is the business of childhood to grow and develop. Courts routinely make parenting orders that provide for graduated regimes that take account of the well known developmental trajectory of children. Pilcher is an example of such a case. In the present matter, the family report said almost nothing about [X]’s best interests as she progresses through her various developmental stages. Neither party adduced any other expert evidence about [X]’s best interests at any future developmental stages.
On reflection, I consider that it would not be in [X]’s best interests at this point in time to make orders that change the time that she is to spend with her father more than four years hence. I say that with reluctance, because it seems fairly likely that the result will be further litigation concerning [X]. Of course, the preferable course would be for the parents in this case to do what the vast majority of separated parents do, and simply agree between themselves the arrangements for [X].
I do not consider that, for the foreseeable future, equal shared care would be in [X]’s best interests. She is far too young at present, as the father acknowledges. I do not have the evidence before me that would justify a decision at this stage to order equal shared care at any particular point in the future.
I would observe, however, that there are certain features of this case that suggest that an equal shared care arrangement might be in [X]’s best interests in the future. Her parents live in close proximity. They are both capable and committed parents. While neither of them is perfect, they each have much to offer her. On the other hand, [X]’s parents have poor communication and a limited ability to cooperate with each other. However, they are things that could be expected to improve with therapeutic counselling and the passage of time. In any event, when [X] is older, the difficulties between her parents will be less significant, and the benefits to [X] of spending equal time with each parent may well be greater.
That being so, the court must then consider whether it is in [X]’s best interests to spend substantial and significant time, as defined, with her father. The mother did not argue that it was not, but sought to limit the time [X] spends with her father. The mother said that [X] was clingy when she returned to her mother on Tuesday evenings after three days away from her. I accept that evidence. It is to be expected, given [X]’s age.
[X] presently spends four nights per fortnight with her father, namely, every Sunday and Monday night, plus Thursdays during the day. While the mother said that [X] was unsettled on Tuesday evenings, that is probably because of the extended period away from her mother, rather than because she had spent part of that period with her father and part at childcare.
Both parties seemed to think it would be good for the father to care for [X] on Mondays, not least because the mother works on that day and the father does not. The mother proposed that [X] spend with her father alternate Saturdays from 5pm to Monday at 6pm plus the other Monday from 7.30am to 6pm. The father said he had no difficulty with his time starting at 5pm on Saturdays.
The benefit of that configuration is that [X] would only be away from her mother for 48 hours at a time once a fortnight. [X] would spend Monday nights with her mother before going to childcare on Tuesdays. This could be expected to be easier for [X] than the present arrangement.
However, it amounts to only two nights per fortnight with the father rather than the present four. The mother proposes that [X] spend two and a half hours with the father each Thursday, to enable her to see him relatively frequently. However, I see no reason to reduce the overall number of nights that [X] spends with her father.
Ms Dockeary did not squarely explain why [X]’s time with her father should be reduced from four nights a fortnight to three. It is not entirely clear that Ms Dockeary recognised that her recommendations did involve a reduction in [X]’s time with her father. Ms Dockeary spoke in general terms about a block of time with the father and minimal intervals, and the need to avoid too many changeovers. Clearly, there are various configurations that would allow [X] to spend four nights a fortnight with her father while meeting those criteria.
It seems to me that, in addition to the times mentioned above, it would be in [X]’s best interests to spend each Thursday with her father from 8am until Friday at 8am. I understand that the father’s work will accommodate such an arrangement. It will enable [X] to have four nights a fortnight with her father. She will have one day a week in childcare, namely, Tuesday. She will not be away from her mother for more than 48 hours.
That arrangement will not be so convenient when [X] starts school. It is in [X]’s best interests that she has gentle start to school. The father sought to distinguish between the commencement of preparatory school and the commencement of grade 1. I accept the force of that submission.
In [X]’s prep year, I consider that it would be her best interests to spend time with her father from 3.30pm Thursday to 6pm Sunday in one week, and 3.30pm Thursday to 9am Friday in the other week. This will give [X] an extended weekend with her father in alternate weeks, as well as one night in the other week. [X] will be able to have the benefit of her father’s involvement in her school activities as well as in her weekend activities.
In [X]’s second year at school, being her grade 1 year, I consider that it would be in [X]’s best interests to somewhat extend her time with her father on alternate weekends to 9am on the Monday. By that time, [X] would have settled into school. The extended weekend would enable the father to have a greater involvement in [X]’s schooling, and would promote a more meaningful relationship between them.
Birthdays, Christmas and Mother’s and Father’s Day
The mother sought orders that [X] spend from 8am to 6pm, subject to childcare or school attendances, with each parent on his or her birthday, and with the mother and father in alternate years on her birthday. The mother also sought orders that [X] spend alternate Christmases with each parent, and spend Mother’s and Father’s Day with the relevant parent.
The father did not seek specific orders about birthdays or oppose the orders sought by the mother. I consider that it is in [X]’s best interests that there be such orders.
Changeover
The father proposed that changeovers take place at childcare or at his home. The mother proposed that changeover occur at [X]'s childcare or school where practicable and otherwise at the father's home unless he moved more than 5 km from his current address when changeover should occur at the mother’s home. The father did not oppose the mother’s proposal, but noted that it indicated that the mother was willing for the father to attend her house when it was convenient for her. It seems to me that the mother’s proposal for changeover is in [X]’s best interests. There will be orders accordingly.
Travel to Queensland and other short holidays
The father sought orders that [X] be permitted to travel to Queensland to visit her paternal grandparents each alternate month from 8am Saturday to 8am Tuesday on 14 days notice. The mother opposed that order on the grounds that it was seeking extra time by stealth. However, the mother proposed that when [X] is three, she be permitted to travel with each parent for three separate periods of five days and when she is four, she be permitted to travel with each parent for three separate periods of seven days on 28 days notice.
The parents did not explain why they thought one proposal was better than the other. I consider that it is in [X]’s best interests that she spends time with her paternal grandparents and that she spends time on holiday with each of her parents. The durations proposed by the mother seem to me to be age appropriate for [X]. I consider that the father’s proposal is a little too frequent and disruptive. The holiday with each parent should be largely in what would otherwise have been their time.
I do not consider that the parents in this case should be given freedom to choose when they will holiday with [X]. I consider that there is a real risk that each of the parents would abuse that privilege. I consider that it is in [X]’s best interests that her holidays with each parent be by agreement or be at set times, such as the Victorian school holidays. It also seems to me to be appropriate that each parent knows where [X] is when she will not be staying at the other parent’s home and knows how [X] will be travelling. I accept the mother’s proposal that there should be weekly telephone contact during holidays. There will be orders accordingly.
Travel overseas
The mother sought orders that she be permitted to travel overseas with [X] for three weeks in 2009 and each alternate year thereafter. The mother wishes to visit her family in England. The father opposed this order and sought an airport watch list order.
In general terms, it is in [X]’s best interests that she be able to visit her maternal family in England. However, I do not consider that it is in [X]’s best interests for her mother to have carte blanche to take [X] out of the jurisdiction whenever she chooses. Proposals for overseas travel need to be considered in the light of the circumstances prevailing at the time and in the light of the details of the proposed travel. The mother said that she has a job and a mortgage in Australia but she has not specified the dates or places of proposed travel. Her application is vague. I do not consider that it is in [X]’s best interests to accede to it in its present form. If the mother wishes to make a further application at any time with proper details, she may do so.
The mother and father each sought an order that she or he be able to keep possession of [X]’s passport. I do not consider either of these proposals to be in [X]’s best interests. It would be preferable for [X]’s passport to be held by the Registrar of this court, unless the court orders that [X] may travel overseas for a particular period. Such an order may of course be made by consent.
In view of the mother’s substantial connections with an overseas location, I consider that it is in [X]’s best interests that both of her parents be restrained from removing her from the Commonwealth of Australia except with an order of the court, which may of course be obtained by consent.
The mother also sought an order that each parent sign all such documents and do all such acts and things necessary to ensure that [X] has a valid Australian passport at all times. It seems that it is likely to be the mother who would want [X] to have a passport. There are certain costs involved and certain steps need to be taken that do not simply require the giving of permission and the signing of documents. I consider that it is in [X]’s best interests that she does have a valid Australian passport whenever she is going to travel overseas. However, I consider that the proposed order needs to be recast to fit with the realities of the process.
The mother also sought an order that, in the event a parent defaulted in his or her obligations regarding the passport, an officer of the court be authorised to sign for the defaulting parent. I consider that it is premature to make such an order, especially as it would remain on foot for 15 years. If the need arises, the appropriate application should be made.
Restraint on the father’s attendance at the mother’s home
The mother sought an order restraining the father from attending her home without her prior approval. Given the strained relationship between the parents, I consider that it is in [X]’s best interest that the father be restrained from being within 100 metres of the mother’s home without her prior consent, save for the purpose of any changeover at the mother’s home provided for by the orders made by the court. For reasons of clarity, the consent should be in writing, such as by email or in the communication book. Of course, if the relationship between the parents improves, the mother may give the father a general consent.
Kindergarten
The father sought an order that, in 2010, [X] be enrolled in a mainstream kindergarten on Tuesdays and Thursdays. The father did not explain how this would be in [X]’s best interests or why mainstream kindergarten would be better than childcare. It is not self-evident.
The mother sought an order that [X] be enrolled in [T] Childcare kindergarten and she commence attending 3 year old kindergarten in term 1 of 2010. I understand the mother to mean 3 year old kindergarten at [T]. The mother did not explain why this option was to be preferred.
The parents did not provide evidence comparing mainstream kindergarten with the program offered at [T]. In the absence of any such evidence, I am unable to conclude that mainstream kindergarten would be in [X]’s best interests. It will unduly complicate her care arrangements. I do not consider that the benefits of mainstream kindergarten, if any, outweigh the detriments of those complications. On the other hand, there are benefits to [X] of attending three year old kindergarten at [T]. She is familiar with the other children there and the surroundings. There will be orders in accordance with the mother’s proposal.
Review
The father sought orders that the matter be reviewed in one year. Such an order is contrary to the principle of finality in litigation. It is not in [X]’s best interests for such an order to be made.
Other matters
The mother sought various other orders of a detailed but fairly uncontroversial nature. The father did not expressly oppose them. I consider that they are in [X]’s best interests. There will be orders accordingly.
I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Ashika Kanhai
Date: 3 December 2009
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