Jerome and Tanzer

FAMILY COURT OF AUSTRALIA

JEROME & TANZER

[2012] FamCA 548

FAMILY LAW - CHILDREN – Best interests - Where the child has been living with each parent in an equal time shared parenting arrangement - Schooling – Where the parents live a significant distance apart – Where the child has reached school age – With whom the child should primarily live – Where the child enjoys a positive relationship with each parent – Child of an Aboriginal background – Where the father is in a better position to assist the child in exploring his Aboriginal heritage – Where the mother is expecting a child – Where living primarily with the mother would afford the child a greater opportunity to develop a sibling relationship.

Family Law Act 1975 (Cth) – Part VII; s 60B; 60CA; s 60CC; s 60CC(2); s 60CC(3); s 61B; s 61C; s 61DA(1); s 61DA(2); s 61DA(4); s 65AA; s 65DAA(1); s 65DAA(2); s 65DAA(3);

B & F (1998) FamCA 239
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531
Hort & Verran (2009) FLC 93-418

APPLICANT:

Mr Jerome

RESPONDENT:

Ms Tanzer

FILE NUMBER:

PAC

5822

2010

DATE DELIVERED:

20 January 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

19 & 20 January 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Shepherd of Shepherds The Family Law Specialists

COUNSEL FOR THE RESPONDENT:

Mr Gersbach

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg

Orders

The following parenting orders are made in respect of the child the subject of these proceedings B born … March 2007 (“the child”).

Parental Responsibility

That the father and mother have equal shared parental responsibility for the child.

Live With

That the child shall live with his mother except when he is living with his father pursuant to these orders.

That commencing on the first day of the child commencing school in 2012 the child shall live with his father as follows:

(a)During school terms, for the first two out of each three weekends (as well as the Father’s Day weekend) from not later than 6:00 pm Friday until 6:00 pm Sunday (or 6:00pm Monday if a long weekend or pupil-free day).

(b)For one half of the Term 1, 2 and 3 New South Wales school holidays as agreed between the parents or in default of agreement for the first half thereof each year commencing not later than 6:00 pm on the last day of the school term until 6:00 pm the following Sunday.

(c)During the Christmas New South Wales school holidays as agreed between the parents or, in default of agreement, as follows:

(i)Commencing 2012 and continuing each alternate year thereafter from not later than 6:00 pm on the last day of term until 6:00 pm on Christmas Day and each alternate week thereafter.

(ii)Commencing 2013 and continuing each alternate year thereafter from 6:00 pm on Christmas Day until 6:00 pm on 1 January and each alternate week thereafter.

(d)From 6:00 pm Thursday immediately preceding Easter to 6:00 pm Easter Monday commencing 2013 and each alternate year thereafter.

Mother’s Day

That the child shall not live with his father during the weekend which includes Mother’s Day.

Changeover

That the mother shall deliver the child to the father’s residence at the commencement of each period the child is to live with his father.

That the father shall deliver the child to the mother’s residence at the conclusion of each period the child is to live with his father.

School

That both parents do all things and sign all documents necessary to ensure that the child is enrolled, and commences kindergarten in 2012, at T School, in Suburb X, a suburb of western Sydney.

That both parents shall do all things necessary to authorise the child’s school to provide both parents with copies of all school reports, memoranda or correspondence and any invitations to school events to which parents are usually invited.

Birthday

That the parent with whom the child is living on the child’s birthday shall invite the other parent to celebrate the child’s birthday on that day.

Medical Treatment

That both parents shall authorise any medical practitioner treating the child to discuss his treatment and the child’s health with both parents, including providing details of any treatment and medication and provide to both parents copies of any relevant reports.

That each parent shall ensure that the other is kept informed of:

(a)any medical problems or illnesses suffered by the child while in their care and shall forthwith inform the other if there is a medical emergency concerning the child.

(b)any medication that has been prescribed to the child, and provide copies of any medical reports in respect of the child.

Communication

That each parent shall be entitled to telephone the child when he is living with the other parent and shall facilitate the child telephoning the other parent if the child so wishes.

That both parents will use a communication book with respect to the child and will add an entry each time the child moves between them.

That each parent shall advise the other and keep the other advised of their current address and contact telephone numbers (including both landline and mobile numbers) and advise the other of any changes to these details within seven days of such change occurring.

Courtesy

That each parent shall refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and do all things necessary to ensure that no third person makes critical comments about the other parent in the presence or hearing of the child.

Activities

That each parent shall ensure that the child attends any extracurricular activities that the child is enrolled in by agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jerome & Tanzer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5822 of 2010

Mr Jerome

Applicant

And

Ms Tanzer

Respondent

REASONS FOR JUDGMENT

B (“the child”) who was born in March 2007 is a fortunate young child. I shall refer to him as … this being the name affectionately used by his parents in relation to him. I say a fortunate young child because he has two very good parents who have been able to parent him in an equal time shared parenting arrangement. This has clearly been in his best interests.
His parents are Mr Jerome and Ms Tanzer. For convenience, I shall refer to them as the father and the mother. The matter which has precipitated the need for an adjudication about parenting arrangements for the child is the fact that the child has reached school age. His mother lives in Western Sydney and his father now lives in Town L.
In optimum travelling conditions, one can drive between the parents’ homes in approximately one and a half hours, or perhaps a little more. The drive can take a lot longer, depending on traffic conditions. The child cannot attend schools near both places of residence of his parents. Despite the parents’ very considerable capacities to cooperate and negotiate, they have been unable to agree on arrangements under which the child would live with one of them during the school week and attend school nearby. So they have asked the Court to make this decision.

Applications

Firstly, both parents have agreed to the Court making an order to the effect that they continue to have equal shared, parental responsibility for the child. One would not expect anything different, in circumstances where they have been able to cooperatively parent the child so well.
The father’s application is to the effect that the child would attend C School in Town L, in the New South Wales central tablelands, commencing this school year, 2012.
The father seeks orders to the effect that from the first day of primary school the child would live with him and spend time with his mother as follows:
·each alternate weekend during school terms commencing not later than 6 pm Friday, when the father would deliver the child to the mother’s residence, until 6 pm Sunday (or Monday if it was a long weekend) when the mother would return the child to the father’s residence.
·in the school holidays for Terms 1 and 2 from 6 pm on the first Sunday, when the father would deliver the child to the mother’s residence, to 6 pm on the following Friday, when the mother would return the child to the father’s residence. And from 6 pm on the second Sunday, to 6 pm the following Friday, with the same delivery requirements. And I note that in such an arrangement, the child and the mother would have the intervening weekend together.
·in Term 3 school holidays, half the available time as agreed. And in the absence of agreement, from 6 pm on the first day to 6 pm on the holiday midpoint day, with the same delivery and the collection requirements.
·for the Christmas school holidays, half those holidays as agreed. And in the absence of agreement, alternate weeks in accordance with a formula based on odd and even years including Christmas Day.
·telephone communication and various other orders, the details of which it is unnecessary to set out at this time.
On the other hand, the mother seeks orders to the following effect that the child would live with her and spend time with his father as follows:
·for two out of each three weekends, from Friday after school to 6 pm on the Sunday.
·during Christmas holidays, in accordance with what the father has proposed above relating to the first week of the holidays, concluding either on Christmas Day or, perhaps, Boxing Day and then alternating weeks or, perhaps, alternating fortnights thereafter for the remaining part of the holidays.
·in respect of the other school holidays, half of each set of school holidays.
·certain orders in relation to Easter and special days, as well as various specific orders, the details of which it is unnecessary to refer to at this point.

Background

The father was born in 1977, and he is 34 years of age. The mother was born in 1987, and she is 24 years of age. The parties commenced cohabiting in early 2004 and they finally separated in late 2007.
Both parents have re-partnered. The father is married to Ms R. They live in Town L. They operate a business which involves property maintenance. They are also preparing to establish a personal services business.
The mother has also re-partnered, her partner being Mr G. They are engaged to be married. Mr G works in health care at a hospital in Western Sydney. That position involves shift work. The first three weeks of each month involve what I might describe as day shifts and the last week involves at least four night shifts, or perhaps it is more. But certainly the evening shifts go from approximately 9:30 pm to perhaps 7:00 the following morning.
The mother is currently pregnant with her second child. She is due to give birth in February 2012 to a daughter. The mother and her fiancé have chosen the name K for their expected baby. The birth is imminent.
In September 2008, the parties attended Relationships Australia and agreed to a parenting plan that provided for the child to live with his father six nights per fortnight and with his mother for the remaining eight nights per fortnight.
In 2009, the father relocated to Town O, situated in the central tablelands of New South Wales. .
In July 2009, the mother commenced cohabiting with Mr G in Suburb P in the western suburbs of Sydney.
In August 2009, the father moved to his current home at Town L. In 2009, the mother was advised by a worker in the child’s playgroup that he did not seem to have as many words as other children of his age group. The mother said that the worker suggested to her that the child should perhaps see a speech pathologist.
The child’s name was placed on a waiting list for speech therapy. I shall refer to this matter further below because it has assumed a very prominent part in these proceedings, in a particular context.
In February 2010, the child commenced attending an early learning centre at Town K on Fridays while his father was at TAFE.
In March 2010, the child commenced attending an Early Learning Centre in Western Sydney. That was an establishment at which his mother enrolled him.
In March 2010, the father took the child to a speech pathologist at Town K. Subsequently, the child had twelve speech pathology sessions at the mother’s home. I shall refer again to this matter. And then a speech pathologist, Ms A, prepared an assessment report in respect of developmental matters and the child’s speech therapy.
On 17 September 2010, the parties attended a Legal Aid conference and agreed to a parenting plan that provided for them to have equal shared parental responsibility for the child, for him to live with each of the parents fourteen nights in each 28 day period during school terms, for the parties to share time with him on special occasions and certain other arrangements, as otherwise agreed.
On 7 December 2010, the father filed the Initiating Application which commenced these proceedings.
The parties subsequently attended upon Ms D, family consultant, and she prepared an issues assessment in the Child Responsive Program.
In 2011, the father enrolled the child in the N Child Care Centre at Town L for attendance one day a week.
In June 2011, the father married his present wife.
On 1 July 2011, the parties attended a further Legal Aid conference.
On 25 August 2011, I ordered preparation of the Family Report in the proceedings.
On 25 October 2011, the parties attended upon Ms D, this time for the purposes of interviews to assist Ms D in preparing the Family Report. I have had opportunity, not only to read that Report but also to observe Ms D giving her evidence in response to questions in cross-examination by each of the learned lawyers for the parties respectively.
On 29 November 2011, Dr F carried out a comprehensive diagnostic assessment of the child on referral from the child’s paediatrician, Dr H. That was in circumstances where there had been some discussions between the parents and various professionals with whom the child was involved to the effect that the child appeared to be a child who had special needs and there might be a possibility that he might be diagnosed as being placed somewhere on the autism spectrum.
As it has turned out, Dr F undertook that diagnostic assessment. She came to the view, and I am just paraphrasing, that although the child manifested some of the symptoms which would be relevant to a diagnosis in respect of autism, he did not fulfil the requirements for such a diagnosis. She thought his behaviours and conditions were really a function of his deficits in the area of speech and language. And of course, those are matters which the parents, to their credit, have been working on with the various specialists and the child for some time.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objectives are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
That is a significant matter in this case. I shall speak again about that matter.
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that 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.
As I have indicated in this case, there is no contest in respect of that matter.
Section 61DA(2) of the Act provides in effect that 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 abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that 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.
Again, that falls away, because it is not an issue in these proceedings.
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 first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
I pause to make the observation that so far as the presumption of equal time is concerned, obviously, that was the happy situation which, for the child, worked so well. Unfortunately, it is likely to be brought to a close in the circumstances to which I have indicated. So I will speak again about those matters.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for his parents to have equal shared parental responsibility for him. As I have said this is not in issue.
The Court must first consider making an order for the child to spend equal time with each parent if this will be in his best interests and be reasonably practicable.
Because equal time is not in the best interests of the child, or reasonably practicable, as indicated above, that is, because he has reached school age, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of his parents would be in his best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the child spends with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the child spends with the parent allows the parent to be involved in:
-the child’s daily routine; and
-occasions and events that are of particular significance to the child; and
·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.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In relation to the child having a meaningful relationship with both of his parents, I note that Ms D said that the child presents as a happy child who has a very positive relationship with both of his parents and their partners. She said that the child has flourished in an environment where all of the adults in his life care for him and act appropriately around him. The child presented as strongly attached to both parents. Ms D said this is likely to be the result of the substantial time he spent with both parents and the good quality care that he has received in both homes.
Ms D went on to say that the best arrangement for the child would be to remain in an equal time arrangement. Since this cannot practically continue, Ms D said that the child would need to spend sufficient time with the parent with whom he does not primarily live so as to maintain his close relationship with them. I shall refer again to this matter below.
So far as the second matter, that is the child protection matter, is concerned the parties make no allegation that the child would be subjected to physical or psychological harm or exposed to abuse, neglect or family violence in either household. As I have said, both parties seek orders that provide for him to spend substantial and significant unsupervised time with the other parent.

Additional Considerations – s 60CC(3)

I turn to the additional considerations set out in subsection 60CC(3) of the Act.

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

The child is currently four years, almost five years of age. Obviously he is not of an age where any weight could be attached to his views. In any case, he has not appeared to express any view about which parent he would prefer to live with primarily. The family consultant said there was no obvious preference shown towards either parent and that would hardly be surprising in circumstances where the consultant said that he had a very close and very good relationship with each of his parents in the circumstances where they had been sharing responsibility for his living arrangements equally.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

Ms D observed the child to have a very positive relationship with both of his parents and their partners. She said that the child appeared comfortable with his mother. He was appropriately assertive with his mother and sought her out in his play. Ms D said that the mother addressed the child in a gentle affectionate tone and demonstrated a capacity for imaginative play.
She said that the child also appeared pleased to see Mr G and happily chatted with him. They played together, which the child appeared to enjoy. Ms D observed Mr G to interact warmly with the child and to use a gentle tone when addressing him.
In her observation with the child and his father Ms D said that he appeared pleased to see his father and Ms R and excitedly told them about a game that he had just played. Ms D said that the child’s father demonstrated a capacity to engage in imaginative play and supported the child’s play without taking over. Ms R addressed the child in a warm, friendly tone and showed interest in his play. The child appeared to enjoy his time in the playroom with them.
I note that the mother agreed that the child enjoys a warm and close bond with both his father and Ms R. Ms R indicated that she would be happy to assist the father with the care of the child and on the other hand, Mr G indicated a similar happiness to be involved in the child’s care. He said that the child gets on well with his family and is included in the normal family events.
As I have said there is really nothing surprising in that account in the circumstances where the parents have been so successful in being able to cooperatively parent the child.

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 have demonstrated a willingness and ability to do this. Ms D said that both parents appeared to value the other parent’s role in the child’s life and each accepted that the other parent is very important for him. Both parents indicated to her that they were able to communicate about the child’s needs and there was no hostility between them or their partners. The father told the family consultant that he would continue to work cooperatively with the mother to ensure that the child maintained his positive relationship with her should the child primarily live with him.
The mother said that she would arrange appointments for the child to occur on changeover days if the child was to live with her so that his father could attend. The mother also maintained it would be in the child’s best interests for an equal time arrangement to continue if the father moved back to Sydney. The family consultant said that the child’s mother appeared to support the child in spending time with his father and Ms R by agreeing to continue the equal time arrangement despite the distance involved. Ms D noted that liberal telephone communication between the child and the other household would not appear to present any difficulties for either parent and she made a general recommendation to that effect.
In late 2009 the parties agreed that the child would spend one less night a fortnight with his father to assist at the time when his father had particular commitments in the TAFE schedule that he was undertaking at the time. In early 2010 the mother offered for the father to spend eight nights instead of six to make up for that shortfall which the father accepted. When the mother asked the father subsequently to return to the equal time arrangement for seven nights each, there was some disinclination at first to do that. But in any event, what happened was that the parties agreed to a make-up weekend which would then bring them back into the position where each of them was having 50 percent of the time with the child.
I refer to that matter really to demonstrate in practical terms the level of willingness and ability which each of the parties have been able to bring to their parenting responsibilities in the best interests of the child.
So I have no reservations in respect of either of them concerning those matters. There would appear to be nothing between them in terms of their abilities in that regard.

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 either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

Both parents have been participating in the travel arrangements as I have indicated. The proposal which each of the parents puts forward will require some change to the current arrangements. The mother said on her proposal that she thought the child would require some initial adjustment time to a new regime but all the four adults involved would be able to support him with that.
The events of the mother and Mr G expecting their baby within a matter of weeks is clearly a significant change. Ms D said that it would be extremely important that the child be given the opportunity to grow up with a sibling. I shall refer to these matters again. But in short the circumstances which might flow from that are completely untested, untried and unpredictable. It is certainly unpredictable how, having a new child in the household, might impact on the child and his relationship with his mother. But Ms D was cross-examined about that matter and her response was that most children cope pretty well with the birth of a baby and having their circumstances impacted in that way. Ms D did not think that there would be any particular problems involved in that.

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.

The father lives in Town L, in the New South Wales central tablelands with Ms R. The mother lives in Suburb P in the western suburbs of Sydney, with her fiancé, Mr G. The father said that he intends to remain living in Town L for the reasons that they have just set up a new business and want to develop that in a way which will be able to provide for them and their family.
I have referred to the geographic distance involved between the parties. Clearly these are relevant matters. But they are not practical difficulties which would stand in the way of appropriate arrangements being able to be put in place for the child to be able to continue his meaningful relationship with each of his parents. As I have said, he will also be able to have liberal telephone communication with each of his parents.

Section 60CC(3)(f) – the capacity of each of the child’s parents and 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.

This is one of the areas where it is said that there is some slight difference between the parents. The child attends speech therapy once a month. He attends occupational therapy once a week for his writing, cutting and drawing skills. He is under the general care of a paediatrician.
The father’s case is that he has been more pro-active than the mother in seeing to it that the child commenced therapy for his speech and other developmental needs and particularly in having the child assessed, and having him commence the various therapies.
The father also said that he thought that the mother would have less time to assist the child once she had the baby in February. The mother said that she and Mr G complete the child’s exercises at home as do the father and Ms R. It is the case that the child has been receiving most of his therapies at Town L. The regular arrangement has been that on the changeover day, the mother would take the child up to Town L and the parties would make the appointment for the speech and occupational therapy to coincide with the changeover. On the day that the child was undertaking that therapy, they would then arrange the next appointment for those therapies.
The mother said that in the event that the Court was to order that the child live primarily with her, she would seek a referral from her general medical practitioner for a new speech therapist for the child.
The mother has expressed reservations about continuing with occupational therapy. I will refer to this matter again. Ms D was of the view that both parents have demonstrated an interest in, and commitment to, attending the child’s medical and therapy appointments. There is no question about that. In my view, they have really been exemplary parents in that regard.

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.

The child is a male child of Aboriginal background. I shall refer to the relevance of this again. The family consultant noted that the child’s speech difficulties were obvious, but no other development areas were observed during her assessment.

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;

The father is an Aboriginal Group J man. He indicated that Aboriginal Group J land covers the Suburb P and Blue Mountains area. In fact, I thought his evidence was broader than that, that is that Aboriginal Group J country really encompasses the Sydney Basin. In any event, he is clearly involved in activities of the Aboriginal Group J community organisation, including cultural camps. He said that the community has organised corroboree in festival time, corroborees having been held at Suburb S, Town K, and Town L.
The child has participated in some cultural events with his father. Clearly, both parents said it is important for the child to be able to explore and develop these rich strands of his heritage and culture. That was certainly the view expressed by the family consultant, that it would be important for the child and his father to have opportunities so that father can teach him about his culture, including participation in the sort of the events which I have just referred to and which the father referred to in his evidence.
There was some suggestion that if the child was to live primarily with his mother, in fact, he would not be moving off Aborginal Group J land. But as we explored this during the course of the hearing, I was satisfied with the father’s evidence. He said that the whole of Australia is country for Aboriginal people and Aboriginal Group J people often moved and lived afield from the boundaries of their Aboriginal Group J land. He said that Aboriginal Group J community was also related to language. But there was no question that if the child was not living with his father at Town L, then somehow he would not be living with his father in country. I accept that. I will speak further about this important matter.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

As indicated above, both parents have demonstrated an interest in, and commitment to, attending to the child’s special needs and to his appointments. Ms D said that the child appears to have flourished in the environment where all the adults in his life care for him and act appropriately around him. Again she said that his strong attachment to both parents is likely to be the result of substantial time spent with both parents and the good quality care that he has received in both homes.
I do not see any serious deficits by either parent in respect of that matter.

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 are no family violence orders and happily family violence is not something which has been a characteristic of this family.

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

There is some significance in this consideration if I was to determine that the child’s best interests were served by him living primarily with his mother.
The mother suggested that such living arrangements should be put on hold until the commencement of the next school year because the mother’s clear position is that she would prefer the child not to commence school this year. As we discussed during the course of the hearing, this would have the effect that the parents would continue to parent the child in their current equal time arrangement.
I must say such a situation troubles me, as I indicated during the course of the hearing. I would be concerned that over the next twelve month period prior to the child starting school and moving into his mother’s care, if that was to be the order, there might be new circumstances, or the parties’ relationship might be subjected to some strain, and the family might find themselves in further litigation in the Court. So in my view, that is a relevant matter to keep in mind in determining the child’s best interests.
I would not regard that sort of arrangement as being least likely to lead to further litigation. It troubles me that the opposite might be the case.

Submissions

I now propose to refer to the submissions that were made on behalf of each of the parties.
Mr Shepherd submitted on behalf of the father that the relevant matters the Court has to consider in making its ultimate determination appear to be reasonably balanced. It was submitted that the father’s proposal would allow the child to continue to have a relationship with his mother, his family and the new baby.
It was noted that the mother made no criticism of the father or of his parenting capacity. It was submitted that the family consultant really expressed the view that matters were pretty evenly balanced with the exception of a matter which she regarded as being very important. This was really what the learned solicitor put to me was the single distinguishing factor, namely the relationship between the child and his new sibling.
And as I have observed, it was submitted that these are obviously untested and unpredictable matters. It was submitted on the arrival of K will create a whole new world for not only the parents, but particularly for the child. It will be challenging for him. It was submitted that there will be some other pressures on the mother brought about by her need to focus very much on the needs of her new baby. So that there will be less time from her to attend to the child’s needs, her attention inevitably having to be divided between the two children.

As I indicated above, Ms D said that most children, while perhaps initially exhibiting some level of frustration and displacement, come around fairly quickly to accepting the new child. As against that, Mr Gersbach asked Ms D whether she thought it might assist the child that the child had already been named and that the child had been talking to his new baby sister in her mummy’s tummy. Ms D said that she did not think there would be anything remarkable about that because that would be completely within the expectations of normal behaviour in such circumstances.
A very important part of the father’s case was criticism of the mother in terms of her not always having paid the attention which might have been possible to attending to appointments and matters which had been recommended by a number of the specialists assisting the family. I shall come to these in more detail shortly.
The other major area of submitted difference was in respect of the father’s and the child’s aboriginality. There is no question that the father is much better placed to be able to encourage the child to enjoy such matters than the mother.
I was taken by the learned solicitor to a number of authorities in respect of these matters. The first was a decision of Moore J in the case of B & F (1998) FamCA 239. I was taken to a passage in that judgment where her Honour said as follows:
As I see it, the requirement to maintain a connection to their lifestyle, culture and traditions involves an active view of the child’s need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses an active experience of their lifestyle, culture and traditions. This can only come from spending time with family members and community. Through participation in the everyday lifestyle of family and community the child comes to know their place within the community, to know who they are and what their obligations are and by that means gain their identity and sense of belonging.
I was also referred to a judgment by learned Federal Magistrate Brown, which was referred to in the decision of the Full Court of this Court in the case of Hort & Verran (2009) FLC 93-418. In that case, the Court was faced with a particular issue about whether the paternal grandmother of the children would be able to appropriately attend to these matters of culture and heritage. The Federal Magistrate concluded that she would not be able to do so. But his Honour was satisfied that the children’s need for information, knowledge and experience about their Tiwi culture, language and traditions would be able to be served during weekends and school holidays spent in the care of their mother and other family members.
The Court talked about the importance of being able to protect Aboriginal children from the effects of racism.
The other submission was in respect of the child’s schooling. Put shortly, the father’s position was that he was of the view that it would be appropriate for the child to commence school this year. But I had a sense late in the submission that this was really on the basis that the father had made preparations for the child to undertake a form of transition introduction to the school at Town L. I shall come back to this matter.
Ultimately the submission on behalf of the father was that the best interests of the child would be served by him living with his father and Ms R in Town L, coming down to Suburb P and spending significant and substantial time with his mother and Mr G.
On behalf of the mother Mr Gersbach submitted that the criticisms made of the mother in respect of those matters which I have described, that is lack of attention to appointments and professional recommendations, to manage and improve or properly manage the child’s special needs have really been somewhat overstated.
It was suggested that there was really only one of the speech therapy appointments which was completely missed by the mother. It was submitted that when one considers the circumstances of the mother, that is, that at the time she was in a fairly advanced state of pregnancy and also the fact that she had to do the travelling, those matters do not reflect seriously on the mother’s parenting capacity.
Mr Gersbach submitted that the importance of the arrival of the new baby and the opportunity that that would provide for the child to have an important new relationship with his sibling, which was described by Ms D as being extremely important, swing the pendulum in favour of the child being placed primarily with his mother.
In respect of the aboriginality issue, it was conceded that the father was much better placed than the mother to attend to these matters. The mother was not in as strong a position as the father to foster the child’s aboriginality. But it was submitted that there would be appropriate opportunity on weekends and holidays for those matters to be pursued, encouraged and fulfilled. In fact weekends and holidays would be more likely to be the times when there were cultural opportunities presented in that regard. And it was pointed out in respect of those matters that there was no suggestion that there were likely to be any issues of racism in the mother’s household and extended family.
I turn to consider the matters of the speech therapy and the occupational therapy. As I have said, the father made some criticisms about the mother not attending to some appointments.
I note that the first matter that was the subject of some criticism was 1 September 2011, which was an appointment scheduled for the child to have speech therapy at Town L. It is clear that the father and Ms R attended. But the mother was running late that day and ultimately the appointment was rescheduled. On 10 October 2011 the mother missed the appointment completely and the mother conceded that.
There was another appointment which the mother missed. This was on 24 November 2011 and involved both occupational therapy and speech therapy. But this was in circumstances where the child had an appointment with the paediatrician on that day and the father and Ms R had come down to Sydney. It is clear that the mother did not go up to Town L and attend the appointment on that day. But that was in circumstances where there must have been some earlier discussions between the parties. It was clear that the father and Ms R were going to be in Sydney on that day. The mother’s evidence was that her sister was pregnant and I had a sense that the mother thought she needed to provide some support for her sister on that occasion.
And the mother had indicated to the father that she might not be able to attend on that occasion. The mother said that as it turned out, she was feeling ill and she decided not to attend. So she did not go up to the appointment on that occasion. I do not think a great deal was made out of this.
Just looking at it objectively, the position was that the father and Ms R were down in Sydney and were able to take the child up to Town L for his appointments. So the child did not miss out on an appointment on that occasion. The only relevance really was that the mother was not in attendance. But in all the circumstances, I would have thought she could be excused from going to all the trouble of attending the appointment.
There was another occasion when the mother conceded that she had missed occupational therapy because she had forgotten it. This was either on 20 October 2011 or perhaps I have confused this with 10 October 2011. In any event, the mother appeared to have developed a view that the occupational therapy was really not assisting the child much and was not really worthwhile. She said that her experience of the occupational therapy was that the child did drawing and writing and some behavioural matters. The mother said that she did not think that was really offering the child anything other than what she and the child were doing and what she understood the child and those in the father’s household were doing with the child.
There was no question that the father organised these various therapies. There was some small question perhaps about which parent first acted in respect of taking some action to have these issues of the child’s speech and language delay managed in terms of the speech therapy. The mother said that once the person in the play group had suggested to her that she contact somebody who could help with that, she made inquiries and had the child put on a list.
She said there was a delay and the father in the meantime had managed to arrange the actual appointments for the child. The mother said that she put the child on the list towards the end of December 2009. The father said it was much earlier in the year than that, the clear inference being that the mother was somewhat lax in attending appropriately to that matter. There might be something in what the father says. In any event, he certainly gets credit for having put in place some concrete arrangements which ultimately meant that the child was able to have the benefit of the speech therapy. I think that first occurred in about February 2010.
The first speech therapist was Ms R in Suburb Z, in western Sydney. Then Ms W provided the child with approximately twelve speech pathology sessions at the mother’s home. I must say, having listened to all the evidence and the submissions about this matter, in my view, the criticisms of the mother in this regard have been overstated. To be fair to learned solicitor for father, he did say none of the matters in itself was all that significant, but they were parts of a pattern which when put together did not reflect well on the mother.
Again, when one considers the circumstances in which they occurred, the fact that the mother was pregnant and that she was having to travel up to those therapy appointments in Town L, one would need to be careful about judging her too harshly about those matters.
The other criticism was the mother’s failure to act on the recommendation of Ms W, who had provided the speech pathology sessions up to approximately September. The mother conceded that it had been recommended that a particular assessment of the child’s developmental needs would be appropriate. The mother also conceded that she had not done that. But again, I would be slow to be critical about that matter because I did not really hear all the evidence that would be required to try and form a judgment about that matter.
The father said that he received the relevant letter, Exhibit 2, from Ms W by email. But he only received it fairly late last year, the inference being that in those circumstances things had already been put in place. Again, that was part of an overall submission that when one put a number of things together, it did not reflect well on the mother in terms of her parenting capacity and attitude. At the end of the day I take those matters into account.
The other matter that needs some consideration is whether the child should commence school this year in 2012.
As I have said the father said that should happen, but it should happen at Town L. The mother’s view was that because of the child’s special needs, he should wait another year and work on his speech and other skills then commence school in 2013.
The father said that the parties discussed this issue with Dr F, the clinical psychologist who undertook the assessment or diagnosis in respect of whether the child would be properly placed on the autism spectrum. Dr F expressed her opinion that the evidence did not support the autism diagnosis as I have already indicated. The father said that Dr F had discussed with the parents the pros and cons of the child commencing school in 2012.
The father said, and I accept all his evidence, that Dr F, did not say whether the child was ready or not to go to school. Dr F did say that the child would benefit from a thorough transition to school program developed with input from his parents, from early intervention teachers, from therapists, preschool staff and teachers from the proposed school. She said that the child would also be assisted by having a number of visits to the school, meeting the school staff and developing a social story about attending school. The father said that he did not think another year of the child working on his speech and language difficulties and his socialisation would better prepare him for school.
The father thought that the problems that the child had would be the same in a year’s time. The father has undertaken part of a recommended orientation program. This involved the child having participated in a nine week transition by attending the C School at Town L once a week. He has met the teachers. The father said that the school has been funded for two teacher’s aids to assist in classes in which the child would be enrolled. In addition, he understood that there was a program available at the school in which the child’s present speech therapist would be able to be involved.
The mother has taken the child to an orientation day at the T School. But it is fair to say that she has not embarked upon the sort of transition to school program recommended by Dr F and certainly not a program at the level that the father has done at Town L. There was a rather late submission on behalf of the father, to the effect that the father was expressing his views about the readiness of the child for school in the context of preparation for school at Town L as distinct from school at Suburb X. It was submitted that the father was less sure that the child would be ready to attend school at Suburb X.
As I have said, the mother was concerned that the child might not have the necessary speech and language skills required to successfully start at school. She thought that another year at preschool and day care would be preferable, and better equip the child for the challenges of school.
Ms D did not wish to express any opinion about whether the child should start school in 2012, although she was invited during the course of cross-examination to do so. She said that this was really the parents’ choice and that there were different views about the subject. But she did say that she understood that some of the relevant matters would be as follows. Firstly, whether the child had adequate language and motor skills. Secondly, whether he could do most things without the teachers’ assistance. Thirdly, whether he would be able to communicate well enough with the teacher to convey his needs. Finally, and I thought she placed some emphasis on this, whether if he remained at the daycare centre or the preschool, the level of teaching and stimulation that he would be likely to obtain from those sources would be adequate for his needs given the fact that he would be older than the other children with whom he would be attending those establishments.
In respect of the child’s language and motor skills, there are some difficulties of speech and language. But I have not heard any suggestion that these are at a level which would not permit the child to effectively communicate with his teacher.
In my view, there does not appear to be sufficient reason to withhold him from commencing at school. As I raised with Ms D and indicated to the parents during the hearing, it would seem to me that if he was to start at school and he really struggled, he could always be held back from going into the next year. And I note in this regard that Ms D had said that holding back very young school children would be less deleterious for them – that is my word – than if such was to occur in their later years.

Conclusion

It is to the credit of both parents that they have been very good parents, and as I have said, they have been able to work together cooperatively promoting the child’s interests. This is exemplified by the fact that they have been able to support one another in their relationships with the child by being sufficiently flexible to ensure that each has spent 50 percent of time with him, and particularly by their commitment to both attending to his speech and occupational therapy sessions. And when the father changed his residence to Town O and later Town L, the mother accepted considerable personal inconvenience in having to undertake her share of what then became a significant amount of travel to Town L in order to support the child’s relationship with his father. In my view, this reflects well on her attitude and commitment as a parent.
As Ms D has said, the child has close and meaningful relationships with both parents and with the partners of each of his parents. Therefore, it is in his interests for both parents to be able to continue to participate in his life to the fullest extent possible. This will be able to be achieved by providing for him to spend as much time as possible with the parent with whom he will not be residing through the school week. It will be very important for the child to have a close relationship with his new sibling, baby K, very soon to be born. As I have said, both parents are very capable as parents and their attitudes to the responsibilities of parenting their child have been appropriate.
I have referred to the criticisms of the mother by the father in relation to tending to the child’s special needs. I agree that the father has been impressive in his attention to these matters, in making the arrangements and in attending doctors and therapists. I have no doubt that his commitment in respect of these matters will continue. But I am not over-critical of the mother in respect of those matters particularly in the context of the flexibility which she has shown in terms of putting herself out in order to be able to undertake the travelling to meet the father’s needs in that regard.
So that is an important matter and it has been a prominent matter in the case. I would rate the father as being slightly more attentive to the special needs matters than the mother. But not by any great margin. This difference between the parties in my view, is not such as to persuade me that there is a likelihood that the child’s development would be significantly hampered in the mother’s care by reason of those matters.
The points of difference between the parties really come down to two, in my view. Firstly, there is no question that the father is better placed and equipped to be able to assist the child to explore and develop his heritage as an Aboriginal person and all the cultural implications of this. And there is the importance, Ms D uses the expression “extremely important”, for the child to be given the opportunity to grow up with his new sibling.
It is clear that Ms D regards the opportunity for development of the sibling relationship to be extremely important. This is obviously a very strong ingredient in the opinion which she formed that the best interests of the child would be served by him living primarily with his mother. She explained a relationship between siblings as being very important for the following reasons. Firstly because it is an additional close relationship for a child. Secondly, because of the richness of such relationships in opening expanded family networks for the child, particularly with cousins and other children. Thirdly, because sibling close relationships are likely to extend beyond the lives of the parents. With respect, this opinion coincides with my own.
As I have said, because each of the parents are performing so capably as parents, there is little between them at this time in terms of the matters the Court is required to take into account. But in my view, the mother’s new circumstances with a new baby will change things dramatically. I accept Ms D’s professional view of the importance of the child being able to grow up with a sibling. In my view, there will be greater opportunity for this if the child resides with his mother and baby K, and attends school close by with all the new connections and opportunity that that will provide. I would not regard such opportunity to be nearly as significant and effective if the child was to be placed in a position where his opportunity to develop this important relationship was limited to weekends and school holidays.

Having said this, while it is very important for the child to become involved in his Aboriginal culture, I am confident that this will be able to be appropriately provided for during the many periods when he will be living with his father.
I have no doubt that the father will be more able to attend to those matters and that there will be ample opportunity for the child to pursue those heritage and cultural matters which are obviously so important to him and which will clearly contribute to the richness of his life. He is a fortunate child to be in a position to be able to have such opportunity.
And finally, I have the view that in respect of the substantial and significant time which the legislation requires in this context, what is proposed in terms of a very considerable amount of the time other than the time available to the child attending school will be able to be spent by the child living with his father, Ms R and his extended relatives on that side.
So in all the circumstances, in my view, the best interests of the child will be met by living primarily with his mother, living as much as possible outside those times with his father and commencing school this year. As I have indicated, I am not persuaded that it is in the child’s interests that we put in place a pause in terms of his education.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice W P Johnston delivered on 20 January 2012.

Associate:

Date: 30 April 2012

[2012] FamCA 548

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Family Law