Jonas and Kilmer

[2019] FCCA 900

FEDERAL CIRCUIT COURT OF AUSTRALIA

JONAS & KILMER [2019] FCCA 900

Catchwords:
FAMILY LAW – Parenting – shared parent responsibility – where parties unable to agree – role of the Court – best interests of the child – reasonable practicability – equal time arrangement with each parent in future.

Legislation:

Family Law Act 1975 (Cth), ss.65DAA & 66C

Applicant: MR JONAS

Respondent: MS KILMER

File Number: DNC 397 of 2017

Judgment of: Judge Young

Hearing date: 21 March 2019

Date of Last Submission: 21 March 2019

Delivered at: Darwin

Delivered on: 21 March 2019

REPRESENTATION

Counsel for the Applicant: Ms Franz

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Mr Story

Solicitors for the Respondent: Story & Associates

ORDERS

1. The mother and the father are to have equal shared parental responsibility for [X] born … 2013 (“the child”).

Live With/ Time Spent

1. That during school terms, the child shall live with his parents as follows:

   (a)until the child’s 7^th birthday, the child shall live with the father for five (5) nights each fortnight broken into four (4) nights from after school on Thursday to before school on the following Monday or Tuesday if Monday is a public holiday in the first week and from after school on Thursday to before school on the following Friday in the second week and with the mother at all other times;

   (b)from the child’s 7^th birthday until the child’s 10^th birthday, the child shall live with the father for five (5) consecutive nights each fortnight from Thursday afterschool until before school on the following Tuesday and with the mother at all other times;

   (c)on the child’s 10^th birthday the child shall spend equal time with his parents and that he shall live with each of his parents for alternating 1 week periods with such weekly periods to commence on Monday and to conclude on the following Monday.

2. That during school holidays the child shall spend equal time with his parents.

   Notation: the parents have agreed to specific orders for equal time during school holidays which is contained in order 11 hereof.

3. That the child shall spend time with each of his parents during the Easter holiday  period (from after school on the Thursday before Easter Friday until before school on the Tuesday after Easter Monday) as follows: 

   (a)With the mother for Easter in 2019 and each alternate year thereafter; and

   (b)With the father for Easter in 2020 and each alternate year thereafter.

4. That, noting the final consent order 12 d) hereof, the parent who has the care of the child at the end of the school holidays is to return the child to the care of the other parent (who is due to care for the child at the commencement of the school term) on the last Saturday of the school holidays at 10 am.

5. That the mother be permitted to enrol the child at School A.

6. That each party be permitted to travel interstate and overseas during the time the child is with them subject to the travelling parent giving 2 weeks’ notice in writing.

7. That the party who does not have the care of the child can phone or have Skype, or other equivalent video communication with the child each Tuesday and Thursday at 6:30pm or on such other days and times as is agreed between the parties in writing. 

8. That both parties are to make inquiries as to the availability of counselling to assist them to better communicate in relation to parenting matters for the child and to undertake such counselling.

9. That each parent be restrained by injunction and an injunction issue restraining each parent from:

   (a)Denigrating the other parent or members of the other parent’s family, including but not limited to the child or in the child’s hearing or presence, or allowing anybody else to do so; and

   (b)Exposing the child to abuse (including verbal abuse) or family violence, and that each parent take all measures necessary to remove the child from an incident of family violence should such circumstances arise; and

   (c)The parents be restrained and an injunction issue restraining the parents from questioning the child about the other parent/parent’s household;

   (d)Discussing or otherwise exposing the child to particulars of these family law proceedings.

THE COURT ORDERS BY CONSENT

Special days

1. That the child shall spend time with his parents as agreed between the parties in writing or failing agreement as follows:

   (a)For the school holidays (noting order 3 hereof):

   (i)At the end of Term 1 with the parent due to pick up from school for the first half and with the other parent for the second half;

   (ii)In the event the Easter Holidays falls into the School Holiday period, the order of the shared school holiday period will be reversed if needed so that the child may spend continuous time with the parent they are spending the Easter Holiday period with.

   (iii)At the end of Term 2 in 2019 with the mother for the first half and with the father for the second half and each alternate year thereafter, and at the end of Term 2 in 2020 with the father for the first half and with the mother for the second half and each alternate year thereafter;

   Notation: In the event that school holiday periods change, the parents have agreed to this holiday period alternating to support the sharing of NT Cracker Night and will make every effort to continue this.

   (iv)At the end of Term 3 in 2019 with the parent due to pick up from school for the first half and with the other parent for the second half

   (v)At the end of Term 4:

   a)   in 2019, with the father from after school on the last Thursday of the school term for the first third (approximately two weeks) of the holidays, then with the mother for a period of half the holiday period (approximately 3 weeks) and then with the father for the remaining holiday period; and

   b)     in 2020 with the mother from after school on the last Thursday of the school term for the first half of the school holidays and with the father for the second half and each alternate year thereafter;

   c)     in 2021 with the father from after school on the last Thursday of the school term for the first half of the school holidays and with the mother for the second half of the school holidays and each alternate year thereafter.

   Notation: In the event that school holiday periods change, the parents have agreed to this time being alternated to support the sharing of Christmas and New Year’s and will make every effort to continue this.

   d)     On the Mother’s Day weekend each year from afterschool on the Friday before Mother’s Day until before school on the following Monday with the father to have make up time on the weekend immediately before or the weekend immediately after if the child was due to spend time with him;

   e)     On the Father’s Day weekend each year from afterschool on the Friday before Father’s Day until before school on the following Monday with the mother to have make up time on the weekend immediately before or the weekend immediately after if the child was due to spend time with her;

Changeovers

1. That changeovers for the child are to occur as agreed between the parents in writing and failing agreement as follows:

   (a)That on school days the parents shall collect the child from school and deliver him back to school; and

   (b)That for all other changeovers, the parents are to make exchanges at Store B, Street C at 5pm, unless otherwise agreed in writing; and

   (c)That either parent can nominate a third party to conduct the changeover, on condition that they provide the other parent with advanced notice in writing of the name of the third party; and

   (d)In relation to order 5 hereof, for the school holidays at the end of Terms 1, 2 and 3, instead of the child being returned to the other parent at the end of each holiday period, the child will be returned to his school on the first day of the Term.

   Notation: It is the parents’ wish that order 5 apply to the end of the Term 4 school holidays only.

Communication regarding Residence and Contact details

1. That any change to residence or contact details (mobile phone numbers and email addresses) for the child/ parent are to be notified to the other parent within 48 hours of any such change.

Schooling and Education

1. That both parents shall be permitted to attend childcare, schooling, extracurricular and other like events which parents are ordinarily invited to attend and that parent attending when the child is not in their care will notify the other parent of their intent to attend in advance.

Healthcare

1. That the parents shall consult one another in writing before seeking any initial non-urgent and non-invasive health or medical intervention for the child.

2. That the parents shall inform each other of any medical or healthcare matters concerning the child including all medical appointments and their date, time and place; at least 48 hours in advance where possible.

3. That the parents shall follow the recommendations of qualified medical and/ or healthcare professionals in relation to the child’s treatment.

4. That, where free medical intervention is unavailable, or the parents agree to use private medical intervention, the parents shall equally share the costs of referred and recommended medical intervention for the child as per Order 17.

Emergencies

1. That in the event of an emergency, the parent with whom the child is with will contact the other parent via phone call in the first instance. If the phone is unanswered, the parent’s nominated emergency contact will be contacted by phone. If both calls are unanswered, a text message will be sent to both numbers. Full details in relation to the nature of the emergency and the child’s treating medical specialists shall be provided.

Travel

1. That either parent may travel with the child during school holidays (within Australia or overseas) when the child is spending time with him/her,  outside of the town/city in  which the child ordinarily resides only if;

   (a)The travelling parent notifies the non-travelling parent in writing of the interstate travel not less than 14 days in advance and for overseas travel not less than 28 days in advance; and

   (b)The travelling parent provides the non-travelling parent with a travel itinerary and contact details (accommodation name, location and a telephone number or other electronic contact details) for the child while they are away; and

   (c)When travelling internationally the travelling parent is responsible for ensuring that the child is appropriately covered by travel insurance which ensures the child is medically safe and can return home in the case of an emergency.

   (d)When travelling internationally the travelling parent will notify in writing at least 14 days in advance of when the Child’s passport is required and the passport will be provided by the non-travelling parent on or before the required date.

Communication

1. On the child’s birthday, …, each year that he will have a call, Skype or alternative video communication with the parent he is not in the care of. That the parent who has the child in their care will notify in writing of an appropriate time for this call to occur.

2. That the child be permitted to contact the parent who does not have care of him by phone at all reasonable times.

3. That until the child’s 7^th birthday, phone calls outlined in order 8 will be limited to Tuesdays during school terms, and Tuesdays and Fridays during school holidays.

4. That between the child’s 7^th and 10^th birthdays, phone calls outlined in order 8 will be limited to Sundays during school terms, and Tuesdays and Fridays during school holidays.

5. That after the child’s 10^th birthday, phone calls outlined in order 8 will be limited to Tuesdays and Fridays.

6. That all non-urgent communication requiring a decision or containing important information about the child between the parties will be in writing via text between the father’s mobile phone number and the mother’s mobile phone number or via email.

Extra-Curricular

1. The parents will consult each other and the child about the introduction of new activities and arrangements for them at least 1 week prior to the enrolment due date.

2. If the parents agree to a new activity and its arrangements in writing prior to the enrolment due date, they will support and carry out those arrangements.

3. That all previous orders are discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 397 of 2017

MR JONAS

Applicant

And

MS KILMER

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting case about [X] who is five and a half years old. He presently lives with his mother and spends three nights a fortnight with his father and some time after school on Thursday. The applicant father seeks an order that [X] spend equal time with each parent.  The respondent mother seeks an order that the child spend four nights a fortnight with the father.  That, at least, is her formal order sought, although in submissions her counsel seemed to concede that five may be appropriate.

3. The background to the matter is as follows.  The father is a professional. The mother is a public servant. They separated in December 2016, that is, a little more than two years ago. The parties are hostile and distrustful of each other and dismissive of the other’s concerns about [X]. A subject of considerable friction between them is whether or not [X] suffers from gluten and/or dairy intolerance. The mother says he does and his diet ought to be restricted accordingly. The father says that he does not and his diet should not be restricted.

4. The parties concede there was insufficient evidence for me to make a finding about the question of whether or not [X] suffers from such an intolerance. There has been no medical evidence presented to me which expresses a clear view, although there has been in evidence correspondence, doctors’ memoranda and so on that has some bearing on the question but, as far as I’m concerned, it doesn’t resolve it. It is unnecessary to consider that particular issue further as neither party asked me to make a finding about the subject. However, one of the corollaries of that approach is that I am unable to find whether one party or the other’s concerns about [X] and his medical issues, particularly his alleged intolerance, is unreasonable.

5. While I have observed both parties to be intelligent, and indeed, articulate, and very able to express themselves in the witness box and otherwise, I found other aspects of their evidence less than impressive. The father’s hostility and distrust of the mother was palpable in evidence. The father told me in evidence that he drafted his own trial affidavit, some 493 paragraphs and 156 pages, including annexures. It detailed blow by blow the history of his dispute with the mother. In my view, the affidavit was unnecessarily detailed.

6. I might make some observation about excessively long affidavits. Of course, a trial affidavit has to contain a degree of detail because generality creates its own problems but this affidavit was unnecessarily detailed and unnecessary detail, by definition, is irrelevant detail. Significant parts of the affidavit, indeed, on one view, the whole affidavit, was pervaded with irrelevance which could have been avoided had it been drafted by a practitioner, in my view.

7. In any event, the lengthy affidavit appears to blame the mother largely for the difficulties. I am not satisfied that the matter is as straightforward as that. Nor am I satisfied that the father’s interpretation of events is reliable.  As I have mentioned to counsel, the father is clearly enmeshed in the dispute. For example, in December 2018, he admitted videotaping a changeover.  This was a breach of an undertaking given to the Local Court on 9 January 2018.

8. The father admitted that it was a deliberate breach of the undertaking but he asserted that he was justified in doing that.  I do not accept that assertion. There are other indications that the father takes the view that the end justifies the means. There was evidence that he attended, some point after separation, at the mother’s workplace and removed the numberplates from the car which she was using. It was registered in his name. He thereupon cancelled the registration of the car and did not give any notice to the mother of that.

9. When I queried him about the reasonableness of his conduct he said he was advised by a lawyer to do so to obviate the “risk” to him of being fined, for example, while the mother was speeding. I consider that answer, if not precisely in detail, to be untrue in substance and I consider that the real reason for the high-handed conduct of the father in that case was spitefulness. I consider that a tone of blame and self-justification pervades much, if not all, of his evidence and I do not consider him to be a reliable witness in all respects because of that reason.

10. The mother was equally keen to blame the father. Her answers in cross-examination were often non-responsive and provided an opportunity, so it appeared to her, for self-justifying speech.  There are also some examples of her evidence that I reject as untrue.  The Family Report recorded that the mother had asserted that the father showed symptoms of bipolar disorder.  She also alleged that there were some significant signs that [X] was autistic or suffered from autistic characteristics.

11. She denied raising those claims to the Family Consultant and suggested, certainly in the case of the bipolar disorder, that that was raised by the Family Consultant.  In oral evidence that was denied by the Family Consultant.  I do not accept that the mother was truthful in her answers in cross-examination about that issue. That is concerning because the allegations from the mother relating to the serious medical condition she asserted the father, on the one hand, and the child, on the other, suffered from played some part in the evidence.

12. The father underwent a psychiatric assessment and no illness was identified. There was no evidence that the child suffers from any autistic characteristics or is autistic. I consider that the mother’s evidence is, as with the father, unreliable and I approach her evidence with caution.

13. One of the consequences of my conclusion about the reliability of the evidence of the parties is that I do not feel able to make a finding that either parent is unreasonable or reasonable in relation to their dispute and, in particular, their dispute about whether the child is gluten or dairy intolerant.

14. I do not propose, accordingly, to do as the mother suggests, which is make an order that she be solely responsible in relation to medical issues. I do not, in that regard, consider it appropriate to follow the recommendation of the Family Consultant. Regardless of my reservations about the parents, it is clear that [X] has a strong relationship with both parents.  It is clear that both parents cherish him and are devoted to him, although it is also apparent that they have not entirely shielded him from their dispute.

15. That is apparent from the Family Report where [X] is reported as saying that he was aware that his parents were angry with each other and his observation that his parents “had a go” at each other. “One parent had a go and then the other parent had a go back” was his description.

16. Another area of dispute between the parties was the child’s extracurricular activities. The father sought an order that he not be required to take the child to activities selected by the mother. I consider this is an aspect of equal shared parental responsibility. Parents should consult the other about the activities they propose for a child, particularly involving a long-term commitment such as a sporting or cultural commitment that requires regular attendance, and make an effort to reach an agreement about that. I don’t see an easy way of resolving the parents’ readiness to disagree about these matters and I do not consider the father’s proposal in that regard is reasonable.

1. The child’s school attendance was another area of dispute. The child was removed from School D where he was attending preschool last year and enrolled at School A for his transition year or first year. The mother had moved home to move in with her mother at her mother’s home near to the School A. I do not propose to disturb the interim order I made that permitted the mother to enrol the child at School A.

2. The father seeks that there be an order that the child remain enrolled at School A for the rest of his primary school career. Again, I consider that school enrolment is an aspect of shared parental responsibility and requires the agreements of parents.  If the parents want to move the child, they should attempt to reach agreement. If the child is not to remain at that school, in my view, that requires consultation between the parents.

3. The answer that they can’t agree about anything, therefore the Court should anticipate every area of disagreement, every area of every possible factual scenario, and every possible development in the child’s life appears to me to be completely unreasonable. I am not satisfied there is any evidence that the mother has or will move the child or seek to move the child irresponsibly or without any proper basis, so I see no basis for such an order sought by the father.

4. Another order sought by the father was that the mother continue to live within a 13-kilometre radius of the Street E, Suburb F intersection. I wasn’t provided with a map so I can’t see what is included within such a radius. There was also an order in the orders sought in the alternative: that the mother continue to reside in the Darwin/Suburb G area. Whether or not that was to include some of the outer suburbs further out than Suburb G was unclear. Again, I am not prepared to make such an order. Of course, it goes without saying, or it should go without saying that if the mother, for example, intended to move the residence of the child to some place that interfered with the child’s ability to spend time with the father, that would require an order of the Court because it would be a breach of the orders of the Court.

5. The only evidence apart from the evidence of the parties was that given in the Family Report.  The recommendation by the Family Consultant was, having regard to the child’s age and the child’s very good relationship with each parent, that the child should spend five nights a fortnight with the father and that should be extended to equal time by the time the child turns 10. I accept the view of the Family Consultant in that regard is properly based and I generally accept her recommendations.

6. The Court is required to follow a legislative pathway in a parenting matter. The best interests of a child are to be determined according to section 60CC(2).  The primary consideration in deciding on the best interests of a child are (a) the benefit to the child of having a meaningful relationship with both of the child’s parents, and (b) the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence. Fortunately, (b) is not an issue in this case. The other considerations are set out in 60CC(3) and I propose to address each of the ones that I consider relevant.

7. The views of the child.

   I have already made some reference to the views expressed by the child to the Family Consultant with regard to his parents. That is, the child expressed the view that, to use the child’s words, which I think in the circumstances of this case are articulate, that he “really likes them both”.

8. The nature of the relationship of the child with each of the child’s parents and other persons.

   As I have said, both parents cherish [X]. The father’s affidavit, for example, shows the father’s involvement and interest in the child’s life and development, particularly in maths, geometry and computing or programming. Clearly [X] is an intelligent child. I have no doubt the mother cherishes [X] just as much. The child also appears to have a very good relationship with the maternal grandmother. There was no particular evidence about that but the evidence from the father, which I do accept, is that he found the maternal grandmother to be responsible and responsive and he found he was able to cooperate and deal with her. I assume from all of that that the maternal grandmother is a person who has [X]’s best interests very much to heart.

9. The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues, spending time with the child and communicating with the child.

   The fact that both parents, I am satisfied, are enmeshed in their conflict with each other has interfered with their ability to participate in decision-making about [X]. Very often matters that do require a decision have broken down in stalemate or impasse and a decision has not been made or matters have rolled along without the appropriate decision being taken.

10. The extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligation to maintain the child.

    I heard no evidence about that and there is nothing to suggest that the father, who I understand pays child support pursuant to an assessment, has not complied with that assessment.

11. The likely effect of any changes in the child’s circumstances, including separation from either of his parents or any other child.

    The change in circumstance that I do propose to order, which will be an increase in the child’s time with the father, in my view, is not a significant change in circumstances and I am satisfied that the effect on the child will be to his benefit. The child will not be separated from a parent or anyone else.

12. The practical difficulty and expense of a child spending time and communicating with a parent does not appear relevant in this case.

13. Capacity of the parents to provide for the needs of the child, including emotional and intellectual needs.

    Both parents have great capacity, in my view, to provide for the child’s needs. Both parents are intelligent. They are education-focused. They are parents with the qualities and capabilities, if they could focus properly on [X]’s needs, to provide him with a fantastic basis for later life and education. However, while the capacity is there, the fact is that the practical capacity is limited by the fact that I have mentioned a number of times: the fact that both parties are enmeshed in conflict that diminishes their capacity and ability to properly focus on [X]’s needs. That is very regrettable.

14. I am not satisfied that (g) is relevant. The child is not an Aboriginal child.

15. The attitude to the child and to the responsibilities of parenthood.

    I have already made some remarks about that and I do not propose to repeat them.

16. Any family violence involving the child or a member of the child’s family.

    There have been allegations made by each of the parties about intimidating behaviour by the other party but it appears that that largely has ceased since their separation. Although there was evidence of an unpleasant incident in December of last year, not involving violence but certainly involving conflict and, I am satisfied, bad behaviour.  The mother sought the domestic violence order either at the end of 2017 or the beginning of last year and an interim domestic violence order was made, the father says, without it being served on him or without a hearing. I am unable to make any particular finding about that but in any event it appears to be an agreed position that no final domestic violence order was made and the matter was resolved by the parties entering into a mutual undertaking before the Local Court not to approach or communicate with each other or to video each other. An undertaking which was breached, on the father’s admission, in the incident last year.

17. Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings.

    The mother urged that the recommendations of the Family Consultant for there to be an equal time order by the time [X] turned 10 should be rejected. It was submitted that it ought to be rejected because the circumstances when [X] turns 10 in about four and a half years’ time is speculative and too far in the future to know whether such an order is appropriate. I agree that the situation in four and a half years time is somewhat speculative. It may be that the unpleasant, counter-productive, and, indeed, harmful level of conflict for [X] that is going on at the moment will continue.

18. The Family Consultant seemed to be of the view that experience or studies show that about two years after separation, conflict tends to abate. We are now more than two years after separation and, as far as I can see, there is no real sign of conflict abating. Nevertheless, I have referred to the, what I am satisfied is, the intelligence of both parties, not necessarily their maturity. After I have made these orders and these parties have time to reflect and put this litigation behind them, I think there is a fair prospect that the intensity of the present conflict will abate. That being said, I do not accept the submission of the mother that I ought not to make orders that will come into effect so far into the future. One of the reasons I do that is that while the situation is to some degree speculative, I have a reasonable level of confidence that the orders I propose to make are appropriate. I also take into account part (l) which requires the Court to consider whether it would be preferable to make an order that would be least likely to lead to institution of further proceedings. The order I propose to make I am satisfied is least likely to lead to further proceedings.

19. The parties agreed that there should be an order for shared parental responsibility or equal shared parental responsibility. It follows from that that I have to consider the matters set out in subsections 65DAA(1) and (2) in particular, which are whether there ought to be an order for equal time and if not, an order for substantial and significant time.

20. The factors to be taken into account under subsection 65DAA(1) are, in summary, whether an order for equal time would be in the best interests of the child and whether such an order would be reasonably practicable and, if I am satisfied of both those matters, to consider making an order for equal time. 

21. Having regard to the child’s age, that is, he’s five and a half, the fact that he has been in the primary care of his mother and the fact of continuing disputation and conflict between the parents, I am not satisfied that it is in [X]’s best interests to make such an order at this stage. I accept the view of the Family Consultant that at [X]’s developmental stage, stability and routine are important, particularly in the context of a conflict or continuing conflict between his parents. The Family Consultant was also of the view that in those circumstances it was in the best interests of the child that he have a primary residence.

22. The Family Consultant discussed some literature on this issue as set out in her report. I have had regard to her summary of that literature, although in the particular circumstances of this case I did not find that especially illuminating.

23. The question of the definition of reasonable practicability is set out in subsection 65DAA(5).  What is to be taken into account in determining reasonable practicability is set out there:

    a)How far apart the parents live from each other.

    b)The parents current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents, and

    c)The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise from implementing an arrangement of that kind; and

    d)The impact that an arrangement of that kind would have on the child and other relevant matters.

24. I have dealt with those matters already but the parents do not live a great distance apart. It is some 20 minutes’ drive. In one sense the parties do have a capacity to implement an equal time arrangement because they live not too far from each other.  That is certainly on a practical level but I am not satisfied that their relationship is sufficiently cooperative to make it work, particularly given that a child in an equal time household often has demands relating to getting a child to appointments or extracurricular activities and so on that require a high level of cooperation. The evidence in this case, and indeed the father seeks such an order permitting him to do so, is that he does not want to be bound to have the child attend some activity that the mother has arranged. Now, regardless of the right or wrong of that, it is indicative, in my view, of an absence of a cooperative arrangement and it is the absence of such a cooperative capacity that, in my view, may well “shoot down” an equal time arrangement.

25. While for the reasons that I am about to give I consider that an equal time arrangement ought to be implemented in the future, I think it ought not be implemented until the child is older and better able to withstand the stresses and strains that are involved in such an arrangement.

26. Regarding (c), the parents’ capacity to communicate, I have made a number of remarks about that and I do not propose to repeat them but, in summary, there is evidence of poor communication between the parties. I am satisfied that, however, an order for substantial and significant time is appropriate at the moment. 

27. In relation to the future, the Family Consultant was of the view that given what she saw as the love that the parents showed for this child and the love that was reciprocated by the child: [X] “really likes” both of his parents, to use his words. She is of the view that once the child is older and better able to withstand the stresses and strains of an equal shared care arrangement and better able to withstand the stresses and strains of parental conflict should that not be resolved, that it would be in the child’s best interest to spend equal time with each parent.

28. I generally accept that view with some reservations. The reservations I have already expressed. The reasons that I consider that an equal time arrangement is likely to be practicable, likely, on the balance of probabilities, to be practicable in future, is that I think there is a fair prospect that the intensity of the dispute or conflict between the parents will abate in time. Further, given the child’s close relationship with each parent and given my assessment of each parent, that fundamentally they are focused on [X]’s needs. I consider that it is in his best interest when he turns 10 to spend equal time with each parent.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 13 June 2019