Jardine and Phillips

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARDINE & PHILLIPS

[2017] FCCA 585

Catchwords:
FAMILY LAW – Children – poor co-parenting relationship – equal shared parental responsibility – child’s best interests – is equal time reasonably practicable – delayed introduction of equal time.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA

Cases cited:

Goode & Goode (2006) FamCA 1345

Applicant:

MS JARDINE

Respondent:

MR PHILLIPS

File Number:

ADC 3100 of 2015

Judgment of:

Judge Kelly

Hearing dates:

31 October and 1 November 2016

Date of Last Submission:

1 November 2016

Delivered at:

Adelaide

Delivered on:

29 March 2017

REPRESENTATION

The Applicant:

In Person

The Respondent:

In Person

ORDERS

All previous parenting orders are discharged.
The parties share equally in parental responsibility for the child [X] born (omitted) 2007.
For the period until 31 December 2018, [X] live with the mother save as set out in paragraph 4 herein.
[X] live with the father as follows:
(a)during school terms:
(i)on each alternate weekend from the conclusion of school Thursday until the commencement of school on Monday (or Tuesday in the event of a public holiday);
(ii)each intervening week from the conclusion of school Wednesday until the commencement of school Thursday;
(b)for one half of each short school holiday period at times to be agreed between the parties but in default of agreement from the conclusion of school on the last day of term until 5.00pm on the middle Saturday;
(c)for one half of the Christmas school holidays at times to be agreed between the parties or in default of agreement as follows:
(i)in 2017 on a week about basis to commence at the conclusion of school on the last day of term until 5.00pm on the following Friday and each alternate week thereafter with handover at 5.00pm;
(ii)in 2018 from 5.00pm on the first Friday of the school holidays until 5.00pm on the second Friday and each alternate week thereafter between the same times.
Commencing January 2019 [X] live with each parent on a week about basis with handover to take place at the conclusion of school on Friday (or 5.00pm during the school holidays).
Liberty to the parties to agree for [X] to spend a period longer than seven days with either parent during any school holiday period provided that such agreements are notified and agreed to in writing at least twenty one (21) days prior to the relevant school holiday period.

Special occasions

[X] spend time with each parent on special occasions as agreed between the parties or in default of agreement as follows:
(a)if [X] is in the mother’s care on Christmas Eve/Christmas Day then with the father from 5.00pm Christmas Eve until approximately 1.00am on Christmas Day with the father to deliver [X] to the mother’s home no later than 1.00am;
(b)if [X] is in the father’s care on Christmas Eve then with the mother from 9.30am until 5.00pm on Christmas Day;
(c)on [X]’s birthday with the parent who does not otherwise have primary care of [X] on that day from the conclusion of school until 6.30pm if a school day and for a period of four (4) hours if a non-school day;
(d)with each parent on their respective birthdays from the conclusion of school until 7.30pm if a school day and from 1.00pm until 7.30pm if a non-school day;
(e)on the Easter weekend in 2017 and alternate years thereafter with the father from the conclusion of school on the Thursday prior until 5.00pm on Easter Saturday and with the mother for the remainder of the Easter weekend until the commencement of school on Tuesday;
(f)on the Easter weekend in 2018 and alternate years thereafter with the mother from the conclusion of school on the Thursday prior until 5.00pm on Easter Saturday and with the father for the remainder of the Easter weekend until the commencement of school on Tuesday;
(g)the Easter arrangements shall form part of [X]’s half school holiday time with each parent in the event Easter falls within the April school holidays;
(h)with the father from 10.00am until 4.00pm on Father’s Day each year;
(i)with the mother from 10.00am until 4.00pm on Mother’s Day each year.

Handovers

Where possible handovers take place by the relevant parent collecting [X] from or delivering him to school.
All other handovers take place at an agreed venue mid-way between the parties’ respective homes, save and except on Christmas Eve when the father will return [X] to the mother’s home.

Telephone communication

Each parent is permitted to communicate with [X] by telephone each Sunday, Wednesday and Friday between 6.30pm and 7.30pm, unless [X] has already spent time in that parent’s care across the day.
Both parties shall facilitate [X] telephoning the other parent at any reasonable time that he may request.

Communication between the parents

Each party ensure that all communication between them is conducted in a polite and respectful manner.
The parties implement a Communication Book to be exchanged at handovers and to provide information in relation to [X]’s general care, welfare and development with all entries to be polite and respectful and each parent to respond to the other parent in a timely manner (or to initial the other party’s entry, to confirm they have read same).
The parties are at liberty to augment the Communication Book by further electronic methods such as the “Time Tree App” or similar, if agreed between them.
Each parent maintain regular communication with [X]’s school, and take all steps necessary to ensure that they receive all school reports, newsletters or electronic notices and can access any website or Internet-based facility that the school may provide.
The parties participate in family dispute resolution or co-parenting counselling in the event they are unable to resolve any major long term issue regarding [X]’s welfare.

Injunctions

An injunction is granted restraining each party from:
(a)denigrating, abusing, harassing or intimidating the other parent, their partner or any member of their extended family;
(b)denigrating, demeaning or ridiculing the other parent, their partner or any member of their family in [X]’s presence and from permitting any other person to do so;
(c)discussing these proceedings with [X] and from permitting any other person to do so.

Interstate / Overseas travel

Each parent provide the other parent with at least 14 days notice in the event they intend travelling interstate with [X], such notice to include the dates of travel, destination and contact arrangements while [X] is away.
Each parent is restrained from travelling overseas with [X] without first obtaining the other parent’s written consent noting that it is expected that both parents will consent to [X] travelling overseas for a holiday provided that the following conditions are complied with:
(a)the travelling parent provide at least two (2) months written notice of the holiday plans including full travel details, itinerary and contact arrangements while [X] is away;
(b)the travelling parent ensures that [X] communicate with the other parent by Skype or telephone on at least two (2) occasions each week; and
(c)the travelling parent obtain appropriate travel insurance for [X] and themselves.
All proceedings are dismissed as finalised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3100 of 2015

MS JARDINE

Applicant

And

MR PHILLIPS

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are the parties’ competing applications in relation to the care arrangements for their child [X] born (omitted) 2007.
[X] presently lives in his mother’s primary care and spends substantial time in his father’s care. The parties are unable to agree about [X]’s long term parenting arrangements and accordingly it falls to the Court to determine these matters.

Background

The father was born in (country omitted) on (omitted) 1967 and migrated to Australia in 1982. He is 49 years old. The mother was born on (omitted) 1974 and is 43 years old.
The parties commenced their relationship in (omitted) 2005 before separating approximately 18 months later. The mother then discovered she was pregnant and [X] was born on (omitted) 2007. Both parties were living in the Adelaide metropolitan area and were studying and working part time. The mother took on the role of [X]’s primary caregiver and the father spent regular time with the mother and [X]. The parties resumed their relationship in September 2010. In 2011 they moved to live together at Town A, where the father had obtained a position as a (occupation omitted).
Unfortunately difficulties again arose within their relationship and the mother moved out with [X] in late 2011. The mother says that the parties’ formal relationship ended at that time. The father agrees that they ceased living together but says that he and the mother continued in a casual “on again/off again” relationship until January 2014.
While the parties disagree about the extent of the father’s involvement with [X]’s care over this period, the evidence suggests that they were generally able to negotiate [X]’s care arrangements. The father says that the parties effectively rotated [X]’s care but I consider that he is overstating the extent of his involvement. I conclude that [X] lived in the mother’s primary care but spent regular overnight time in the father’s care, including alternate weekends and other times by agreement. [X] commenced school in Town A and completed reception and grade one at School A.
In December 2013 the mother and [X] moved to live in the (omitted) region, eventually settling in Town B. The father was unhappy with the mother’s decision to leave Town A, but the parties nonetheless agreed that [X] would spend alternate weekends in his father’s care, together with other informal arrangements from time to time.
The mother enrolled [X] at School B but he did not settle in easily at the school. While the parties endeavoured to negotiate about their parenting arrangements and responsibilities for [X], communication between them became increasingly difficult. The mother felt the father was controlling and was unable to separate from his parenting relationship with [X]. He would insist on speaking with [X] by telephone multiple times each day, which she found intrusive. The father felt the mother was trying to exclude him from [X]’s life and was undermining his role as [X]’s father. [X] continued to spend regular time with the father, but the co‑parenting dynamic became increasingly difficult.
The parties attended family dispute resolution and sought counselling support in relation to their co-parenting relationship, but the problems continued. In May 2015 the father emailed the mother, saying he would not return [X] to her care, but he ultimately did so. In August 2015 the father again retained [X] in his care. He informed the mother that he would not be returning [X] as the child was unhappy at School B and wanted to return to School A. Not surprisingly, the mother travelled to Town A and removed [X] from school.
The mother then filed her Initiating Application for parenting orders on 30 August 2015. To the parties’ credit, they agreed to recommence the pre-existing parenting regime to the effect that [X] continued to spend alternate weekends in the father’s care, together with regular telephone communication and school holiday time.
That regime continued pursuant to consent orders entered into between the parties on the first hearing date on 28 October 2015. The parties also consented to a range of injunctive orders and a family assessment report was ordered. Further consideration of the proceedings was adjourned to 4 February 2016.
The father relocated to live in Town C in December 2015. Ms I's family assessment report was released on 11 December 2015 but unfortunately it did not assist the parties in resolving their parenting dispute. Accordingly interim parenting issues were listed for argument on 11 July 2016 and trial dates were allocated for a two day hearing on 31 October and 1 November 2016.
Following submissions on 11 July 2016, the Court ordered that [X] spend time with the father during school terms on alternate weekends from the conclusion of school Thursday until 5.00pm Sunday and each intervening week from the conclusion of school Wednesday until the commencement of school Thursday, together with one half of each school holiday period (although the parties subsequently swapped this to alternate Thursday nights). An update family assessment was also ordered, given the variation to [X]’s parenting regime.

The trial

The hearing proceeded before me on 31 October and 1 November 2016. Both parties represented themselves at trial.
The Applicant mother relied upon the following documents:
a)Her trial Affidavit filed 23 September 2016; and
b)A responsive trial Affidavit filed 24 October 2016.
While the mother’s second Affidavit was lengthy, that was preferable to hearing extensive oral evidence from the mother prior to cross examination. The mother also sought to call her counsellor, Ms W. Following submissions, the Court allowed Ms W to give evidence about her psychological counselling with the mother but not about any family counselling that may have taken place between the parties, as the Court concluded that such counselling was inadmissible, in accordance with s.10E.
The Respondent father relied upon the following documents:
a)His trial Affidavit filed 12 October 2016;
b)A further Affidavit filed 28 October 2016.
Both parties’ Affidavit material is replete with their personal opinions and musings, rather than factual evidence. The parties’ opinions and discussion provides some insight into the parenting dynamic but do not otherwise assist the Court in making decisions.
The parties endeavoured to give their evidence honestly and to the best of their recollection but they each recall past events through the prism of hostility and mistrust that pervades their co-parenting relationship. Both parties were cross examined and I congratulate each of them for maintaining a polite and respectful demeanour towards the other parent during the trial process. While both parties behaved appropriately in the courtroom setting, their different approaches to parenting and co-parenting communication were very evident.
Ms I was called as the Court’s witness and relied upon her reports dated 10 December 2015 and 23 August 2016. Both parties cross examined Ms I. Her evidence was of great assistance to the Court, but remains only one part of the evidence to be considered in determining [X]’s future parenting arrangements and his long term best interests.
The mother’s witness, Ms W, was also cross examined by the father. I am satisfied Ms W gave her evidence in a professional manner within the confines set by my earlier ruling.

Each party’s proposals

Both parties support an order for equal shared parental responsibility. The mother proposes that [X] continue to live in her primary care and spend time with the father in accordance with the present regime – from the conclusion of school Thursday until 5.00pm Sunday in alternate weeks and from the conclusion of school Thursday until the commencement of school Friday in the intervening weeks.
She further proposes that [X] spend time with the father for one half of school holiday periods, together with precise orders in relation to special occasions such as Christmas, Easter, birthdays, Mother’s Day and Father’s Day. She also set out a regime of orders in relation to handover, telephone communication, overseas travel and injunctions.
The father seeks orders that [X] live with the mother and spend increasing time in his care from the present four nights per fortnight to five nights per fortnight, then six nights per fortnight and ultimately an equal time care arrangement. The father supports the recommendations of Ms I that [X]’s care occur on a rotating three night/four night regime until [X] is 12 years old and then move to a week about care arrangement.
The father agrees with an order that [X] live in each parent’s care for one half of each school holiday period and spend time on special occasions “equally with the Applicant”. The father supported the continuation of the existing injunctive orders in relation to both parents, in accordance with paragraph 7 of the Orders of 28 October 2015.
The mother proposes that the parties communicate via a Communication Book save in the case of an emergency. The father did not seek a precise order, but agreed the current Communication Book had been helpful.

Legal principles

In accordance with s.65D, the Court is empowered to make such parenting orders as it thinks proper. When making a parenting order, the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles that govern the Court’s decision-making responsibilities. This section focuses on the importance of parents being meaningfully involved in their child’s lives, fulfilling their parenting duties and obligations, and upon the need to protect children from harm.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode (2006) FamCA 1346 the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.[1] Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[1] Goode & Goode (2006) FamCA 1345 [10].
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the event these considerations are in conflict, issues regarding the child’s safety identified in s.60CC(2)(b) should prevail. Section 60CC(3) then sets out a range of additional considerations that must also be taken into account. The Court must also consider the risk of family violence (s.60CG).
Section 61DA presumes that it is in a child’s best interests for their parents to share parental responsibility equally, unless the Court finds that the presumption does not apply or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the child’s best interests to spend equal time, or substantial and significant time with each parent, and whether such an outcome is reasonably practical.

The evidence

I remind the parties that the Court is not required to rule on each and every factual dispute between them. Rather, my obligation is to consider the evidence and to make findings necessary to determine [X]’s best interests. I will discuss the parties’ evidence under the relevant headings within the section 60CC criteria and will commence by considering the expert evidence presented by Ms I.
Ms I has prepared two reports in this matter and interviewed the parties and [X] on each occasion. She noted that “both parties were highly effective parents, who deeply loved and cared for [X]”. She continued: “[X] presented as a well adjusted and happy child, who had the benefit of a strong and secure attachment with each parent.”[2]
[2] Family Assessment Report dated 10 December 2015, para 42

However, Ms I also commented that “it was clear the parties’ conflict was relatively high and that the litigation process had been an emotionally fraught period of time for both. It was also clear that currently the parties were unable to negotiate on children’s matters or even discuss children’s issues without risk of conflict, and it was unfortunate that each parent felt the other lacked trust in their parenting ability at times.”[3]
[3] Ibid,
Despite the ongoing conflict between the parents, Ms I concluded that an order for equal shared parental responsibility was in [X]’s best interests and further recommended that the parties move gradually towards a regime of equal time. Ms I maintained her recommendations at the conclusion of her second report dated 23 August 2016. Ms I noted that [X] supported an equal time arrangement with each parent. Whilst she acknowledged the ongoing conflict between the parents, she also noted that they had been able to work co-operatively in relation to [X]’s medical appointments and had attended such appointments together.
In the course of cross examination, Ms I was concerned that the parental conflict did not appear to be improving, based on the contents of each party’s trial Affidavit. Ms I agreed that the existing social science research indicates that factors such as parental conflict, poor co-parenting and poor parenting communication and lack of respect were detrimental to a successful shared parenting outcome. She queried whether parallel parenting may be more appropriate. In that regard she noted that the parties would then require very precise parenting orders and communication between them would be limited to emergencies. There would be little flexibility available to the parties within such a parenting regime.
In response to questions put to her by the mother, Ms I agreed it was impolite for the father to ignore the mother’s emails in relation to school related issues and that it would be preferable if he responded to these emails, or to suggestions such as the “Time Tree App”, which is designed to assist separated parents manage the practicalities of shared care. Ms I acknowledged the mother’s frustration when the father would refuse to accept her response on a topic, instead repeatedly contacting the mother, asking her to re-consider.
Ms I agreed that the father’s communication as outlined in the mother’s Affidavit indicated some level of disorganisation, for example, seeking the mother to confirm arrangements in relation to birthday parties or sporting commitments for [X], when the mother had already forwarded this information to the father.
Despite these concerns identified by the mother, Ms I continued to maintain her opinion that the parties should work towards an eventual shared parenting regime for [X] and considered that the parents could work to improve their co-parenting dynamic, as they were both committed to [X]’s best interests.
Ms I reiterated her view that a healthy father/son relationship is vital as it enables the child to grow up with positive male role modelling. She agreed with the father that social science research suggests that children benefit from positive role modelling from both parents.
Ms I conceded that the ongoing conflict between the parties was a matter of concern and it may be appropriate to move towards shared care a little more slowly than her report had recommended. At the same time, she pointed out that conflict between the parents may arise no matter what number of nights [X] spent in either parent’s care.
The mother asked Ms I to comment on her evidence that [X] had recently said he no longer wanted to live equally with each parent. Ms I acknowledged that [X] may have supported an equal time arrangement because he saw it “fair to each parent” or because it may have seemed a solution to the conflict between his parents. She suggested that if [X] was now expressing a different view, this may indicate that he is experiencing a level of confusion and uncertainty about his parenting arrangements. She conceded that if [X] had expressed a view against equal care when interviewed by her, her recommendations may have been different.

Section 60CC(2) – primary considerations

(a) the benefit to [X] of maintaining a meaningful relationship with both of his parents

Both parents acknowledge that [X] enjoys a meaningful and loving relationship with each of them. Both parents support [X] spending significant time with the other parent, albeit they disagree as to the precise nature of [X]’s future parenting regime.
I am satisfied that [X] will benefit from maintaining a meaningful relationship with each of his parents into the future.

(b) the need to protect [X] from physical or psychological harm

I am satisfied that [X] is physically and emotionally safe in the care of both parents. While they each raise criticisms of the other, particularly in relation to the emotional impact of the other parent’s behaviour upon [X], none of these concerns are at a level of abuse or neglect.
I am satisfied [X] is not at risk of abuse or neglect, nor will he be exposed to family violence in the care of either parent.

Section 60CC(3) – additional considerations

(a) [X]’s views

[X] has been interviewed twice by Ms I and on each occasion expressed a wish to live equally in the care of each parent.
In the second report Ms I noted that [X] seemed more avoidant in the interview process and answered many questions with “I can’t remember”. At the end of the session, [X] indicated he would prefer if his parents were “back together”. He noted the current parenting arrangement was “OK” but wanted more time with his father and therefore proposed an equal shared care arrangement. [X] commented that his parents did not get along and was clearly aware of the conflict between his parents.
The mother acknowledged that [X] has been in favour of equal time, but gave evidence that he recently had changed his mind and told her he did not want to vary the existing parenting arrangements. The father is concerned that the mother may have pressured [X] to express a different view, but there is little evidence to support this allegation. On the contrary, I prefer Ms I’ interpretation. If [X] has expressed a different view, this may reflect his discomfort at the ongoing conflict between his parents, or his confusion as to how best to manage the situation.
[X] is not yet ten years old. While his views are a relevant factor, the Court should be cautious in placing too much weight upon [X]’s views, given his young age.

(b) [X]’s relationship with his parents and other significant persons

I have already noted that [X] enjoys a close relationship with each of his parents. Ms I noted that [X] enjoys a strong and secure attachment with each parent and that the informal observations during the family assessment were “a delight to observe”.[4]
[4] Family Assessment Report dated 10 December 2015, para 41
The father has raised concerns about [X]’s relationship with the mother’s partner, Mr A. [X] presented as somewhat withdrawn when discussing Mr A, commenting there was “nothing in particular he disliked about Mr A, but there was also nothing in particular that he liked about him.”[5] [X] was very aware that his father does not like Mr A. Ms I concluded that [X]’s ambivalence about Mr A may reflect his father’s negative views about the mother’s new partner, rather than indicating any actual difficulties per se with Mr A.
[5] Ibid, para 39
Ms I noted that [X]’s willingness to accept his mother’s new relationship would have been undermined by the father’s attitude and behaviour at that time. The father’s hostility to Mr A is an indication of his level of distrust in the mother’s parenting. His inability to support [X] in adjusting to the mother’s new relationship is a matter of concern.
The father has recently commenced a relationship as well and [X] did not express any concerns about his father’s partner.
I am satisfied that both parents will support [X]’s relationship with his extended family.

(c) the extent to which each parent has taken the opportunity to participate in making parenting decisions and to spend time with the child;

(f) parental capacity; and

each party’s attitude towards [X] and the responsibilities of parenthood

Both parties are high functioning, well-educated individuals who have a great deal to offer their son. Inevitably the parent who has a child’s primary care plays a greater role in making decisions regarding their child, particularly when children are infants or toddlers. That does not mean that the other parent is not interested in the child’s welfare; sometimes it indicates that the co-parenting relationship does not allow easy, relaxed communication between them. That is the situation between these parents.
[X]’s enrolment at School B is a prime example. The father accuses the mother of not consulting him about [X]’s school enrolment. The mother says that she advised the father of three possible schools that [X] could attend near Town B, where she was living. The mother says the father nominated two preferred schools some distance away which were simply unachievable, due to school zoning restrictions. This led to the father’s complaint that he was “not consulted”.
Once again, the communication dynamic between the parties is such that it is easy to envisage how the father felt “ignored” by the mother and the mother felt “wrongly accused” by the father.
Fortunately, it appears the parties have been able to communicate and participate more effectively in recent decisions regarding [X]’s welfare, such as changing his school enrolment. They have been able to attend medical appointments together with [X], which also indicates they are both participating fully in making decisions about his welfare.
The mother says that in earlier years the father would not commit to spending regular time with [X], to the point where she initiated mediation in 2015, to try and clarify the arrangements. The father rejects any suggestion that he was not spending time with [X], but once again, it is clear that communication between the parties in early 2015 was very difficult. The father’s text and email communications to the mother are offensive and distressing, particularly around the topic of her new relationship with Mr A.
The parties have very different expectations regarding their involvement in [X]’s day to day life when he is in the other parent’s care. The father has felt frustrated and excluded when the mother has not responded to his text messages, or allowed him to speak to [X]. By contrast, the mother feels harassed and invaded by the father’s frequent communication. Again, it is a situation where the parties’ different expectations create difficulties between them, which they are unable to resolve in a sensible, co‑operative manner.
It is unrealistic for the father to expect to speak with [X] multiple times each day when the child is not in his care. No doubt both parents miss [X] when he is not with them, but [X] also needs the opportunity to settle into the care and home life of the parent with whom he is living. Multiple telephone calls from the other parent can be disruptive for a child, no matter how positive their relationship may otherwise be.
Clearly, both parents are competent, capable caregivers who will provide for [X]’s day to day needs and support his educational and intellectual development as he grows. Equally, the parties have different expectations regarding their role as [X]’s parent. They have different parenting styles and each tend to impose their own parenting expectations upon the other parent.
The father acknowledges the mother is a loving and committed parent to [X], but continues to question her insight into [X]’s emotional and developmental needs. One such example relates to [X] staying overnight with school mates or family friends. The father conceded that he tends to be more cautious about such arrangements. By contrast, the mother considers sleepovers to be a normal part of [X]’s social and emotional development and argues that the father should trust her to make these arrangements appropriately.
The mother argues that the father is over-protective and that this undermines [X]’s independence and self-confidence. She is also concerned that [X] has continued to co-sleep with the father, which she believes further undermines [X]’s developing independence.
The father agreed that he had only recently set up a separate bed and sleeping arrangement for [X]. He gave evidence that [X] enjoys sleeping in his father’s bed and was still struggling to sleep alone. The father did not necessarily agree that co-sleeping was a problem, but agreed that [X] was of an age where he should be able to sleep alone.
This is yet another example of the parties’ different attitudes towards their parental responsibility. Both parents need to develop a level of respect for each other as [X]’s other parent, notwithstanding their differences from time to time.
Another example of the parties’ different attitudes relates to the introduction of new partners. The mother informed the father that she had commenced a new relationship before introducing her partner to [X]. This seems an entirely appropriate and respectful attitude to extend towards [X]’s other parent. The father was highly critical of the mother commencing a new relationship with her partner Mr A. The father’s behaviour towards the mother was appalling and I have no doubt that his disapproval and outrage was communicated to [X]. Similarly, the father’s criticisms of the mother’s friend Ms T appear unnecessarily alarmist.
The mother complains that the father continues to refer to Mr A as “that man”. If that is the case, the father should reflect seriously upon his behaviour and the impact his behaviour has upon [X]’s emotional welfare.
The father gave evidence that he is in a new relationship and is introducing [X] gradually to his partner Ms J, to the extent that she sleeps in a different room in his house when she stays over. The mother is critical of the father’s actions, accusing the father of “not being honest” with [X] regarding his relationship with Ms J.
I agree that the father’s approach seems somewhat disingenuous and it may be more appropriate for the father to clearly identify the nature of his new relationship with [X]. However, the mother’s evidence that she and [X] “have a running joke” about whether the father has yet acknowledged his new relationship with Ms J, was also undermining and disrespectful of the father. This evidence did not reflect well upon the mother.

Co-parenting communication

The father was cross examined about his communication with the mother, particularly the difficulties in communication between the parties regarding school issues for [X]. The father initially gave evidence to the effect that he felt the mother had excluded him from [X]’s school routines, but eventually conceded that he had not responded to her emails at times. He further agreed that the mother was not specifically excluding him, rather that she was more involved in [X]’s schooling, because [X] spent more time in her care during the school week.
The father agreed that he could communicate with the school directly, rather than rely on the mother. In that regard, he noted that he and the mother had both met with [X]’s school teacher to discuss their son’s behavioural issues. This is a positive sign.
The parties have commenced using a Communication Book which the father considers is working well. This provides a useful structure for the parties’ parenting communication.
The father conceded that he had been rude and aggressive towards the mother in past email or text exchanges. He also acknowledged that he had spoken with [X] about adult matters, such as child support issues and the mother’s relationship with Mr A. The father acknowledged that this behaviour was unacceptable and inappropriate.
It was reassuring to hear the father acknowledge his past behaviour was inappropriate, but the level of hostility remains a significant matter of concern. Children are exquisitely attuned to their parents’ emotional presentation. While [X] may not have seen his parents’ emails, he would be all too aware of the hostility and distrust between his parents.
Both parents want to provide a safe and secure environment for [X] as he is growing up, but every time they criticise each other, they are undermining [X]’s emotional wellbeing. It is very difficult for a child to hold both parents securely in his or her heart when one parent or the other is constantly ridiculed or denigrated, whether explicitly or implicitly. Both parties would do well to reflect upon this in the future.

(ca) the extent to which each parent has maintained [X]

The father pays child support, as assessed by the Child Support Agency. His contribution may have been modest at times, particularly in previous years when the father was studying, but I am satisfied both parents meet their financial obligations towards [X]’s support.
There may be exceptional expenses for [X] that arise occasionally. The mother may seek an additional contribution from the father towards those expenses, but that is a matter for the parties to negotiate.

(d) the likely effect of any changes in [X]’s circumstances

[X] presently spends regular overnight time in each parent’s care each week. The father’s proposal would see an increase in [X]’s time in his care, an outcome which the father says will be beneficial for [X]. The father believes [X] will adjust easily to this change, particularly as [X] himself was seeking to increase his time in the father’s care, at least when interviewed by Ms I.
[X] is used to moving between his parent’s households and I am confident he would adapt relatively easily to a changing pattern of care, in terms of the practicalities of such an arrangement. However, he may need time to adapt to the emotional reality of spending less time in his mother’s care, given that she has been his primary caregiver for the whole of his life.
While [X] clearly loves his father and will enjoy extra time with him, that will not necessarily make up for the disruption to his primary parenting attachment. [X]’s capacity to manage this transition will be affected by his parents’ behaviour and their ability to provide him with a safe emotional environment in which to implement this change.
Both parents will need to focus upon providing [X] with a secure environment so that he is able to integrate both parents within his emotional landscape in both households.
This is a very different approach to the parallel parenting option discussed by Ms I. Parallel parenting provides for a child to experience equal time with each parent, but comes with a significant emotional cost. The child’s emotional reality is bifurcated, as they learn to shut off the emotional connection with their father whilst in their mother’s household and with their mother whilst in their father’s household. Such parenting arrangements place the responsibility on the child to manage the difficulties in living between two homes.
In my view, it is more appropriate and child focussed to require the parents to manage their behaviour and their expectations in a way that will support their child moving comfortably and easily between their two homes.

(e) practical difficulty and expense

There are no practical difficulties that affect [X]’s parenting arrangements. Both parties are able to undertake the necessary transport for handovers and for [X]’s attendance at school or any extracurricular activities that he may attend from time to time.

(g) the maturity, sex, lifestyle and background of the child, including culture and traditions

[X] is just ten years old. He enjoys a strong connection with his (omitted) culture and background through his father and extended paternal family. The father will continue to support [X]’s participation in his (omitted) culture and heritage. I am confident the mother also respects [X]’s (omitted) heritage.

The mother may feel excluded when the father talks to [X] in (omitted), but this reflects the lack of trust between the parents. I do not consider there is any intrinsic problem with [X] and his father talking together in (omitted) and enjoying their shared heritage.
Ms I described [X] as a somewhat immature boy, a description with which the mother agrees. The father disagreed with this description of [X], but both parents acknowledge that [X] has been demonstrating some behavioural difficulties at school which could reflect a degree of emotional immaturity. [X]’s reluctance to sleep alone in his father’s care also implies a level of emotional immaturity, in my view.
I am satisfied that both parents will provide [X] with the support and encouragement he needs to address his behavioural issues at school and will actively support [X]’s emotional development as he grows through childhood.

(j) family violence; and

(k) family violence orders

There are no family violence orders in place. The mother gave evidence that she considered applying for a family violence order in the past but did not do so.
While I do not consider [X] is at risk of exposure to family violence in the future, the father’s past behaviour towards the mother, such as driving past her home at night to monitor her activities and sending foul and abusive emails was deeply offensive.
This behaviour may not have been designed to cause the mother to be fearful and therefore may not strictly fall within the definition of family violence[6], but the father’s conduct was appalling and absolutely unacceptable. Having said that, I am satisfied the father will not behave this way again in the future.
[6] Family violence is defined in s.4AB

(l) orders least likely to lead to further proceedings

It is well understood that ongoing Court litigation is detrimental to any child’s emotional welfare. I accept that neither party wanted to find themselves in Court, a process which has only caused further difficulties between them as they manage their parental responsibilities for [X].
It is to be hoped that both parents will accept the ruling of the Court rather than find themselves constantly distracted and distressed by ongoing litigation in relation to [X]. [X] would be the real victim in any such scenario.

Conclusion

At the time the proceedings commenced the mother sought an order for sole parental responsibility, but at trial, both parties indicated they would consent to an order for equal shared parental responsibility for [X].
An order for equal shared parental responsibility triggers s.65DAA and the Court must consider whether an order for [X] to spend equal time, or substantial and significant time with each parent is in his best interests and is reasonably practicable.
The mother supports an outcome that would result in [X] spending substantial and significant time in his father’s care, whereas the father seeks an order for equal time. Clearly both parties love [X] and are committed to their role as his parent. I conclude that an order for equal time would be in [X]’s best interests, provided it is reasonably practicable. The concept of “reasonably practicality” is defined in s.65DAA(5) and includes consideration of the parties’ ability to implement an equal time arrangement and their capacity to communicate and to resolve difficulties that may arise.
Both parties live in the (omitted) region and there are no difficulties in relation to distance or transport arrangements for [X]. The mother’s opposition to shared care relates to her assessment of [X]’s best interests and her concern that the poor communication between the parties makes an equal time parenting arrangement impractical. While the father is no longer sending abusive emails or text messages to the mother, he cannot ignore the damage that such behaviour has caused to the parenting relationship. This is not to say the mother was without fault either, as discussed earlier in these reasons.
The father acknowledges that his communication has been inappropriate in the past but considers that the co-parenting dynamic has improved in recent times. He referred to recent occasions when the parties were able to co‑operate regarding [X]’s medical needs.
The Court is faced with a difficult conundrum. The father asks the Court to accept that the co-parenting dynamic is improving, but his evidence was replete with complaints about the mother’s behaviour and unwillingness to co-operate with him. At the same time the father appeared to rely upon the mother, seeking her assistance to clarify [X]’s social events and sporting fixtures.
Both parties should seriously reflect upon their past behaviour and the impact this behaviour may have on [X]. While he has not been exposed to direct hostility between his parents at handovers, he has been unfairly drawn in to the adult dispute from time to time.
Ms I acknowledged the poor co-parenting dynamic between the parties. She was disappointed that the parties had not been able to establish more effective and respectful communication but, on balance, Ms I still supported an order for [X] to live equally with both parents. I agree that both parents have a great deal to offer [X] as he grows up; the question is whether the parents can provide a robust emotional framework that will enable [X] to thrive.
I accept that [X] loves both parents and I am confident that he will adapt to any variation to his parenting arrangements as he grows up. I have already discussed the evidence in relation to [X]’s views and place limited weight upon his views, whether expressed to Ms I or, more recently, to the mother.
The mother is concerned that any recent improvement in the father’s behaviour is a result of the ongoing Court proceedings, rather than any genuine change. That is one possibility, but it may also be that the Court proceedings have provided the father with an opportunity to reflect on his behaviour and to engage more respectfully with the mother now.
I conclude that a move to equal care will be in [X]’s best interests, but not immediately. [X] will benefit from spending an increased number of nights in his father’s care and I conclude [X] should commence spending five nights in his father’s care each fortnight, such that the current alternate weekend time is extended through to Monday morning.
Both parties agree that [X] is not yet sufficiently mature to manage a week about care arrangement. Ms I agreed with their assessment and recommended that any move to equal time occur on a split week basis, such as a “5 night:2 night / 2 night:5 night” regime, in the first instance.
Rather than move to a further split week regime, I conclude it would provide a more settled experience for [X] to implement an equal time parenting regime once he is a little older and more emotionally mature. If such an arrangement was to commence in 2019, when [X] is approaching 12 years of age, then his care arrangements can move straight to a pattern of alternating week about care. This will reduce the disruption for [X] across the school week, by requiring only one handover. This transitional period would also allow time for both parties to focus on their own co-parenting behaviour and ensure that they are able to meet their responsibility to communicate respectively and effectively.
The father will need to ensure that his future communication with the mother is polite and non-accusatory. He will need to demonstrate his capacity to manage [X]’s commitments and ensure that he has all information available to him in that regard, rather than relying upon the mother to clarify arrangements for him. The mother has previously suggested that the parties could implement a co-parenting “App” such as the “Time Tree”, which may assist in this regard. Both parties agree that the Communication Book has also been effective and that should continue.
The mother will also need to ensure that her future communication with the father is polite and respectful. The parties’ different parenting styles can lead to frustration at times, but it is up to each parent to control their own reaction in such situations. They should each ask themselves whether their response to any given situation will reduce the conflict between them, or inflame it?
I am confident that the parties will be able to make the necessary changes to ensure that these parenting Orders are implemented smoothly, notwithstanding my criticisms of their behaviour, particularly the father’s past behaviour. [X] will benefit from the love and positive parenting that he receives from both parents, but he will benefit even more when his parents are able to interact with courtesy and respect.
I do not intend imposing upon the parties or [X] the restrictions of parallel parenting. If I was truly of the opinion that the parties could not co-parent any other way, then I would not consider that a shared parenting regime was in [X]’s best interests.

Ancillary parenting orders

The parties are generally in agreement about a range of ancillary parenting orders in relation to handovers, school holiday arrangements, special occasions, communication with [X], interstate and overseas travel and so on. It was noteworthy that the parties were confident they could agree upon [X]’s care during the Christmas 2016 school holidays without the need for formal orders.
The Orders pronounced today take as their starting point the expectation that the parties will agree about issues such as [X]’s time with them on special occasions, but provide for a default outcome, in case my optimism is misplaced.
The parties support [X] celebrating Christmas Eve with his father’s family and Christmas Day with his mother’s family and I agree this is appropriate. Similarly, it is in [X]’s best interests that he is also able to spend time with both parents on other special occasions. The default orders that I now pronounce generally allow for slightly longer periods of time than the mother proposed, which should ensure that [X]’s time with each parent on birthdays, Mother’s Day and Father’s Day is not too rushed. Inevitably one parent will have the delight of [X] waking up in their care on these occasions, so it is reasonable that [X] is able to enjoy a relaxed celebration with the other parent as well.
Both parties should retain responsibility for their communication and involvement with [X]’s school and his extracurricular activities. The mutual injunctive orders will operate to ensure that neither party is subjected to abuse or hostility from the other parent and will remind them of the importance of communicating politely and respectfully, in accordance with paragraph 12 of the Orders. I am confident that the parties will contact each other immediately in the event [X] suffers any serious illness, accident or emergency and it is not necessary to pronounce any formal orders in that regard.
Clearly it is in [X]’s interests to be able to travel interstate on holidays with either parent, provided the other parent is properly notified of the holiday plans. The parties anticipate future agreement regarding overseas travel as well and I agree this will be in [X]’s best interests. I will pronounce orders facilitating such travel for [X]. It is appropriate that the travelling parent provide the other parent with plenty of notice regarding any overseas travel and ensure that all details are provided in a timely manner.
I am satisfied that these Orders are in [X]’s best interests and I now make orders as published at the commencement of these Reasons.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Associate:

Date: 29 March 2017

[2017] FCCA 585

29 March 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies