KE and GE - [2005] FMCAfam 68

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KE & GE

[2005] FMCAfam 68

FAMILY LAW – Parenting – application for shared residence – contact.

Family Law Act 1975

B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676
H v W (1995) FLC 92-598

Applicant:

Respondent:

File No:

PAM 2502 of 2004

Delivered on:

1 March 2005

Delivered at:

Parramatta

Hearing dates:

15 & 16 February 2005

Judgment of:

Sexton FM

REPRESENTATION

Solicitors for the Applicant:

Ian Bullock & Associates

Counsel for the Respondent:

Mr G Thistleton

Solicitors for the Respondent:

Norwest Family Lawyers

BY CONSENT THE COURT ORDERS:

That the parties have joint responsibility for making decisions about the long term care, welfare and development of the child of the relationship, IGE born 6 July 1998 [“IGE”].
That the mother have responsibility for making decisions about the day to day care of IGE when he is in her care and the father have responsibility for making decisions about the day to day care of IGE when he is in his care.
That the father be prohibited from denigrating the mother or any member of the mother’s family in the presence or hearing of IGE.
That the mother be prohibited from denigrating the father or any member of the father’s family in the presence or hearing of IGE.
That each party notify the other party as soon as practicable if IGE requires any emergency medical treatment or hospitalisation while IGE is in the care of that party.
That each party notify the other party in writing of any change to his or her residential address and/or telephone number not less than 28 days before such change takes place.
Until further order each party, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the child IGE, born 6 July 1998 from the Commonwealth of Australia.
The Marshall of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the police forces of the states and territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.

AND THE COURT FURTHER ORDERS:

That IGE reside with the mother.
That, subject to Order (14) herein, IGE have contact with the father as follows:
(a)Each alternate weekend from 4.30p.m. Friday until 6.00p.m. Sunday extending to 6.00p.m. Monday if Monday is a public holiday such contact to commence on Friday 4 March 2005.
(b)Every Wednesday afternoon from after school until 7.00 p.m. or until 7.30p.m. during daylight saving.
(c)From 9.00a.m. until 6.00p.m. on Father’s Day if it does not fall on a contact weekend.
(d)For the first half of school holiday periods at the end of Terms 1, 2 and 3, including the Easter holiday period if Easter falls outside a school holiday period.
(e)From 10.00a.m. on 1 January until 10.00a.m. on 17 January each year.
(f)From 3.00p.m. on Christmas Day 2005 until 6.00p.m. on Boxing Day in 2005 and each alternate year thereafter.
(g)From 3.00p.m. on Christmas Eve 2006 to 3.00p.m. on 25 December 2006 and each alternate year thereafter.
Weekend and weekday contact shall be suspended during school holiday periods and resume in the next school term as though there had been no interruption to such contact.
That if Mother’s Day occurs on a contact weekend, contact shall end at 9.00a.m. on Mother’s day.
That for the purposes of contact in accordance with order (12) herein the father shall collect and deliver IGE from the mother’s residence or school, whichever is applicable, at the commencement and conclusion of contact periods until the commencement of Term 2 of the school year in 2006 and thereafter the father shall collect IGE at the commencement of contact periods from school or the mother’s residence, whichever is applicable, and the mother shall collect IGE from the father’s residence at the conclusion of contact periods.
That IGE have liberal telephone contact in private with both parents and that each parent facilitate such contact.
That any changes in contact arrangements be negotiated between the parties in IGE’s absence.
The parties must within two working days:
(a)Contact Unifam and arrange an appointment within 28 days for an initial assessment as to suitability for a post-separation parenting program.
(b)Attend the appointment at any reasonable location nominated by Unifam and complete the assessment.
(c)If assessed as suitable for a program or part of a program and the program provider nominates a particular program to attend, the parties must attend that program or part of the program (as the provider directs) as soon as practicable.
The program provider is requested to notify the court in writing as soon as practicable if the parties fail to attend the initial assessment and the Registry Manager must re-list these proceedings to determine what further appropriate orders should be made in relation to the non-attendance.
At the assessment appointment the program provider must complete the assessment within 28 days.
Upon completion of the initial assessment the program provider must notify the court of the results.
The program provider must inform the court in writing as soon as possible if:
(a)A party to this order has failed to attend the program;
(b)The program provider considers a party a subject of the order is unsuitable to take any further part in the program or part of the program.
Upon receipt of such notification from the program provider, the Registry Manager is to re-list the proceedings for further orders.
That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within seven (7) days.
In relation to property issues, the matter is adjourned for hearing before me to 14 April 2005 at 10.00a.m.
All further affidavits on which each party wish to rely at hearing to be filed and served no later than 1 April 2005.
No further affidavits to be filed after 1 April 2005 without leave of this Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2502 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

Applications

These are proceedings for parenting orders in relation to a child IGE aged 6 years [“IGE”].
The proceedings were commenced by the mother who filed an application on 14 May 2004. The mother filed an amended application on 9 February 2005 seeking residence of IGE and for the father to have contact. The mother also sought specific issues orders.
The father filed an amended response on 14 January 2005 also seeking residence of IGE and for the mother to have contact with IGE. The father sought alternative orders for contact with IGE in the event that the mother’s residence application was successful.
Orders were made by this Court on an interim basis on 6 August 2004. Those orders provided for IGE to live with his mother and to have contact with his father each alternate Saturday during school terms from 9.00a.m until 6.00p.m, for 2 hours on a Tuesday and Thursday afternoon, for one week of each school holiday period and on Father’s Day. Contact changeover was to take place at McDonald’s Restaurant at CH.
Both parties sought to vary those orders in the proceedings for final orders before me. The mother sought an order for residence and for IGE to have contact with his father on each alternate weekend from 9.00a.m Saturday until 5.00p.m Sunday, for 2 hours on two weekday afternoons each week, on Father’s Day, for one week during each short school holiday period and for 17 days in each Christmas school holiday period. The mother sought an order that contact changeover take place at McDonalds Restaurant CH. In his Amended Response filed 14 January 2005 the father sought an order that IGE live with him. At the commencement of the hearing, counsel for the father orally amended the orders sought by the father. At hearing the father sought an order that IGE live with each parent on a week about basis or in the alternative that IGE live with his mother and have contact with him for two out of each three weekends from 4.00p.m. Friday until 9.00a.m. Monday. The father sought no specific orders for holiday contact in response to the mother’s application. In relation to contact changeover, counsel for the father sought an order orally at hearing that contact changeover take place at each party’s residence and the parties share the travel. Neither party sought an order in relation to telephone contact.
Both parties were represented at hearing.

Background

The mother was born on 13 April 1969. She is 35 years old.
The father was born on 6 January 1969. He is 36 years old.
The parties started living together in February 1995 and married on 28 October 1997.
There is one child of the marriage, IGE, born 6 July 1998.
The evidence is inconsistent as to whether the date of separation was late November or 1 December 2003. At separation, the mother left the former matrimonial home with IGE.
The father is originally from Lebanon and the mother from East Russia. Both parties are Australian citizens.
IGE has lived with his mother since the parties separated. He is in Year 1 at CHPS.
The mother is working part-time and is living in CH. The father is presently living in KE about a 10 minute drive from the mother.
Neither party has re-partnered.

Issues

The issues before the Court concerned the amount of time IGE should spend with each parent. There was a further issue concerning how contact changeover should occur.
Matters relevant to these issues are:
·IGE’s wishes.
·The nature of IGE’s relationship with his mother.
·The nature of IGE’s relationship with his father.
·The capacity of each of his parents to provide for IGE’s needs.
·The need to protect IGE from emotional or psychological harm.
·The attitude of each parent to the responsibilities of parenthood.

The relevant law – parenting

Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 65D(1) of the Family Law Act provides:
In proceedings for a parenting order, the court may… make such parenting order as it thinks proper.”
Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E which provides that a court must regard the best interests of the child as the paramount consideration. Section 60B(2)(a) emphasises the rights of a child to (i) know both parents and (ii) to be cared for by both parents. The right to know both parents has been recognised as a fundamental consideration and it is only in the most exceptional of circumstances that orders would interfere with that right.
Section 60B(2)(b) provides that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. It recognises the desirability of contact. The word ‘regular’ implies that contact should be as frequent as is appropriate. In B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676 the Full Court of the Family Court said “it is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term.” In considering how much contact should be ordered, the court must make the order which it considers to be in the best interests of the children.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in section 68F(2) of the Act. Its subsections set out a list of matters the court must consider to the extent each subsection is relevant to the particular case. I have considered in particular subsections (a) (b) (c) (e) (f) (g) (h) (i) (j) (k).

Evidence and findings

The mother relied on:
·Her affidavit sworn 24 January 2005.
The father relied on:
·His affidavits sworn 24 May 2004, 28 July 2005, 21 October 2004 and 14 February 2005.
·The affidavit of BLL sworn 20 January 2005.
·The affidavit of TR sworn 14 January 2005.
A Family Report prepared by Mr JL dated 27 January 2005 was Exhibit A in the proceedings.
Mr Thistleton, counsel for the father and Mr Bullock, solicitor for the mother both acknowledged the substantial conflict which has characterised the parties’ relationship since before separation. The mother told Mr JL at interview that it was because of the continual arguments that she decided to leave the father. It was evident from the affidavit material and throughout the proceedings that the parties disagreed about many aspects of parenting IGE and that they found it difficult to communicate in a constructive manner about many issues concerning his welfare. Both parties had a litany of criticisms of the other’s behaviour. I am satisfied IGE is well aware of the conflict and that the friction between his parents causes him considerable distress. The mother deposed to an incident on 1 October 2004 when IGE was staying overnight with his father. IGE called her at 1.00a.m. to say “Mummy, I can’t sleep. I need to go to the bathroom but I’m scared to go.” The father deposed to an incident on 14 October 2004 when IGE left a message on his phone at 5.47a.m. His message expressed disappointment that the father didn’t answer. At 5.52a.m IGE left another message “Hello Dad, I just want to see you now… please Dad”. The father said IGE has rung him in the very early morning on other occasions wanting to see him. I am not satisfied either party has good insight into the impact of their criticism of each other on IGE and I have therefore decided to make an order for both parties to attend a post-separation parenting programme. I hope both parties learn to better understand the adverse consequences of their behaviour for IGE and find ways to avoid such behaviour in the future.
The mother was critical of the father’s behaviour from early in their relationship. She complained of him watching pornographic videos, leaving her alone at night, preventing her from engaging in activities outside the home and being generally inconsiderate of her needs. When IGE was born, the mother deposed to the father being minimally involved in his day to day care. When IGE was four the mother took him to Russian school where she said she made a lot of friends. She was disappointed when the father arranged for IGE to play soccer on Saturdays which prevented her from continuing to take IGE to Russian school.
The mother complained of the father being verbally and physically abusive. She said the father struck her on the face in 1999 causing her a black eye and headaches. In 2003 she said the father jabbed her arm with his elbow causing severe bruising to her arm. This, she said, led to her attempt to take IGE to Russia to see her family without telling the father. She said there were many incidents of verbal abuse and the father used to swear at her in front of IGE.
The father was equally critical of the mother. The father told Mr JL the mother was unpredictable, unstable and has “no foundation”. His evidence of his involvement with IGE as a young child, directly contradicted the mother’s. The father found her incompetent as a housewife, unable to cope when IGE was born and requiring considerable assistance. He said at one stage they employed a cleaner and he was required to undertake the heavy housework. When giving this evidence, the father was noticeably resentful. He deposed to being self-employed and working from home. He said he was looking after IGE every day – “feeding him, dressing him, cooking and taking care of his day to day needs while his mother was visiting her friends, shopping for clothes and entertaining herself.” Later he taught him guitar, took him to swimming lessons, took him to soccer and assisted with his team’s coaching. He said he has taken him fishing, taught him to ice skate, roller blade and ski and they have spent hours together building toy planes and cars. The father denied assaulting the mother on any occasion. On his version of events the mother has struck him with a mobile phone. The father did not deny arguments between the parties while still living together. He recalled being angry with the mother when she didn’t do the housework and when she watched endless Russian television programmes with her mother when she was living with them. He admitted calling the mother “lazy bitch” and asking “why aren’t you cooking and cleaning?”
It is not disputed that in early 2003 the father cared for IGE for about 6 weeks when the mother returned to Russia after the death of her father. IGE attended pre-school each week but the father delivered and collected him and cared for him at other times. The mother did not complain about the manner in which the father cared for IGE during this period. From February 2002 when the mother was teaching music between 6 and 8 on Friday evenings, the mother said the father cared for IGE. The mother in fact told Mr JL at interview that the father had had significant involvement with IGE’s care.
I am satisfied the father had extensive and constructive involvement in IGE’s care prior to the parties’ separation.
The parties separated at the end of November/early December 2003 after an 8 year relationship when the mother moved with IGE to rental accommodation in CH. The final separation was triggered by an argument and police involvement. The police filed a complaint for apprehended domestic violence against the father which was later withdrawn and dismissed.
The mother deposed to flexible contact arrangements from separation until about April/May 2004 during which period she encouraged contact. From January 2004 until May 2004 IGE was usually seeing his father 2-3 times a week but sometimes every day. The father attended IGE’s first day at school and sometimes collected him from school and returned him to the mother later in the evening. The mother complained the father was sometimes late returning IGE but she said the problems really started from 24 April 2004 when IGE was not returned until 24 hours after she had expected him. There was another incident on 7 May 2004 when the police intervened to return IGE to the mother and the mother took IGE to another location to prevent contact with the father for several days. This appeared to lead to the mother starting these proceedings. By then, the mother had decided contact was destructive for IGE. She said IGE was treading on egg shells not knowing what he should and should not say to please his father and the father ‘put too much on his shoulders’ ‘things he can’t handle’. On 1 June 2004 the mother said the father caused a scene outside the school which once again led to the parties seeking police assistance. Again, this incident between the parties occurred in front of IGE. IGE had two nights of overnight contact with his father in the July 2004 school holidays, but again, not without arguments between the parties in front of IGE.

The mother gave evidence of her concern at the father’s attitude to women, denigration of her and his communication of that attitude to IGE. She said the father demanded IGE be ‘rough and tough’ and complained of her ‘raising a pussy cat’. The father’s attitude led to IGE making inappropriate remarks to her. IGE came to believe men were better than women because men could punch harder. In her oral evidence the mother said in recent weeks IGE had said to her after contact ‘you are a slut’, ‘you are an unrespected woman’, ‘you are a lousy rat.’ She told Mr JL at interview that the father was an angry man who maintains a mentality of retribution, power and control [page 2]. She said “he tells the child to be rough and tough, rude and arrogant and that girls are bad.”
The father denied denigrating the mother though in other evidence he conceded calling her “useless”, “a lazy bitch” and “fat bitch”. He said the mother called him worse. I did not accept the father’s evidence on the issue of denigration of the mother. I am satisfied there were many occasions when the father made denigrating remarks to the mother in IGE’s hearing. Observing the father in the witness box, I am satisfied the father had a tendency to become angry and at times intimidated the mother. I am satisfied after hearing the father’s evidence on the issue that he was successful in persuading the mother not to proceed with her domestic violence complaint. I am satisfied IGE is aware of the father’s attitude to the mother.
I have decided there is very little trust between the parties:
a)In July 2003, before the parties separated, the mother attempted to take IGE to Russia without the father’s knowledge. According to the father, the mother had attempted to do this on two occasions earlier in the same year but had cancelled the flights when the father became aware of her plans. The mother’s attempt to leave the country in July 2003 resulted in the father obtaining a recovery order. IGE was traumatised by this incident, having been taken from his mother by the police in Brisbane and having to wait for the father to arrive in Brisbane by car. The father remains apprehensive the mother may wish to relocate to Russia.
b)In November/December 2004 the mother deposed to telling the father IGE was ill, and the father refusing to believe her. The father came to the mother’s home uninvited, pushed her aside and entered IGE’s room to check on him.
c)The mother told Mr JL that the father is incapable of providing an adequate standard of care. She said “his house is a mess, he has no timetable and he does not provide proper food.”
There is little trust between the parties in relation to financial matters. The father complained about the mother spending recklessly on designer label clothing, restaurants, vodka and cigarettes when her mother was staying with them for 12 months from August 2003. He said “they clocked up 20K on my credit card”. The father on the other hand, admitted to gambling $200,000.00 in July and August 2004 at the casino, including $30,000 in one day. He blamed the mother who he said had endeavoured to exclude him from IGE’s life. He said as he gambled he could hear IGE “begging, screaming at his mother to let him see me.” “I needed to escape.” “I called KE many times asking her to help me.” “I couldn’t handle it, my son crying to see me.” I found the father unconvincing when giving this evidence. The father pays only $21 per month in child support yet deposed to spending freely in relation to gifts and amusements for IGE by using his credit card. The father is not presently employed. I find the father has demonstrated gross irresponsibility with money and there is no basis on the evidence before me for the father not to accept full responsibility for his actions. It is a fundamental responsibility of a parent to support his children. The father has not met this responsibility. However, there is no evidence before me that the father’s gambling has interfered with his care of IGE. I agree with Mr JL that the father’s past gambling should not impact on the amount of time IGE should spend with him.
Although the father denied many of the allegations made against him by the mother, I am satisfied the father has acted inappropriately at times to IGE’s detriment. The mother deposed to a phone call between IGE and the father on 6 August 2004 which caused IGE considerable distress. IGE reported the father as saying “Daddy just said he doesn’t want to be my dad and he hung up on me.” He didn’t apologise to IGE until 3 days later. While I am sure the father didn’t mean what he said, I am satisfied the father has a tendency to lose control of his emotions at times, without thinking about the consequences of his behaviour.
The mother deposed to her concern about IGE having overnight contact despite seeking overnight contact in her application. She said IGE has told her he doesn’t want to stay overnight with his father. The mother deposed to her concern about the father’s proper supervision of IGE. She said the father allowed him to watch movies for mature audiences. She is concerned IGE may be exposed to pornography on the father’s computer. She strongly believed the father required parenting classes. I have concluded the mother would prefer IGE did not stay overnight, but if overnight contact is ordered by this court, it should be limited to one night on alternate weekends. IGE has found it difficult to settle after overnight contact in the past. She said IGE needs a daily routine. In her view, she alone can provide IGE with routine and security. In the mother’s view he should come home from school on Friday, have a shower, get changed, spend some time with her before going to his father. The mother strongly opposed IGE staying with his father on a Sunday night for similar reasons of routine. She said IGE is only
6 years old: he would be much more relaxed knowing she would be there to take him to school on Monday morning.
IGE has had only limited contact with his father since the interim orders of August 2004. It was the evidence of the mother that the father had not been complying with those orders. IGE was due to be returned to his mother by 6.30p.m on Tuesdays and Thursdays but was often returned later than this. The father defended himself by saying IGE always asked for his mother’s permission to be late. The father said IGE threw a tantrum when it was time to go back to his mother. The father said he couldn’t bear to see IGE unhappy so allowed him to call his mother to allow more time. It was the father’s habit to stand next to IGE while he rang for his mother’s approval. The father said IGE had little respect for the mother because of the limits she placed on their contact time together.
I have decided the father showed no insight into the inappropriateness of encouraging IGE to negotiate additional time in this way. I have decided he did not understand the questions asked of him by Mr Bullock on this issue. I agree with Mr JL when he said the father involving IGE in this way was inappropriate.
The father sought an order for shared care. Mr JL said, at Page 5 of his report:
This assessment did indicate that IGE is close to both parents and that he misses extended involvement with his father. However, an order for shared parenting seems problematic.
Under cross-examination Mr JL expanded on his reasons for this view. Both parents have very different aspirations and shared care would create a climate of acrimony for IGE. The mother has an aversion to the father. If IGE were to live with each parent for equal time, the mother’s distress would be evident to IGE and his perception of the inter-parental conflict would be exacerbated. IGE has security and predictability in his present domestic environment. His own room, toys, pets provide him with continuity. IGE regards his father as the contact parent. Mr JL said IGE at 6 years of age needed stability, security and certainty which he would not experience in a shared care arrangement given the hostility between his parents. IGE told Mr JL that he wanted to see more of his father and suggested 7 days with each parent. Mr JL said there was some suggestion from his observations of IGE that the father had coached IGE, but in any event it was very clear that IGE was emotionally close to each parent.
I am persuaded by Mr JL’s evidence and by the findings I have made in relation to the father’s conduct that a shared care arrangement would not be in IGE’s best interests.
The father otherwise sought an order for fortnightly weekend contact from Friday until Monday and weekly afternoon contact until 7.30 p.m. The father was confident he would have no trouble ensuring IGE attended school on Monday morning, whatever IGE’s attitude to going to school. He said and I accept that he used to take IGE to school on occasions prior to the making of the interim orders, but not since then. The father said he was available to care for IGE during the periods he would be with him because his anticipated new employment only required him to work from an office away from home during school hours.
Mr JL recommended that IGE remain living with his mother while increasing his time with his father, to a greater extent than proposed by the mother. In his oral evidence Mr JL said IGE should see his father frequently and that if he could manage Saturday night, he could manage Friday and Saturday night. He did not think there was any particular benefit for IGE having weekend contact extended to Monday morning, rather than Sunday afternoon. He said contact until Monday morning poses a potential problem in that some children find it difficult to settle into their usual routine after a contact weekend. However, IGE needed the chance to develop his relationship with the father in a substantial way. To limit contact to the extent proposed by the mother has the potential for harming IGE’s close relationship with the mother.
Counsel for the father put to Mr JL that orders which did not satisfy the father could be a bone of contention between the parties and this should be taken into account. Mr JL did not agree. He acknowledged the possible advantage of contact concluding at school rather than at the mother’s residence. However, he also said the mother’s anxieties about contact needed to be accommodated and that if the father had campaigned to denigrate the mother, IGE’s exposure to the father should be reduced. IGE will have significant difficulties if exposed to denigration of his mother. Mr JL said at Page 6:
It was apparent that IGE needs increased time with his father, but that increase may produce anxiety in the mother which would undermine and threaten IGE’s relationship with his father.
In his view, with the provisos outlined above, he thought alternate weekend contact from Friday until Monday with an additional 2-3 hours during the week would be appropriate in the present circumstances. His proviso also related to the father’s alleged violent behaviour, violent attitudes and values which if being imparted to IGE would suggest the need for more limited contact. Given the father’s habit of returning IGE late from contact, Mr JL said the orders should be clear and prescriptive.
Mr Bullock for the mother submitted that the mother’s application was best for IGE. He asked the court to give careful consideration to the father’s past conduct: his involvement of IGE in the dispute with the mother; his irresponsible behaviour financially; his denigration of the mother; his discouragement of IGE’s connection to the Russian language and community. He submitted it was not appropriate to take into account the father’s possible reaction to the orders.
Counsel for the father submitted parenting time should be shared equally. He said IGE’s wishes should be taken into account and IGE has made it clear he wants to see his father more preferably on a shared basis. He submitted the limited contact to date has placed pressure on the father and there was a risk that limiting contact will have adverse consequences for IGE’s relationship with the mother. He submitted that IGE would have to learn to deal with the conflictual situation he was in and the different styles of parenting in the different households. He submitted that if the court did not favour a shared care arrangement, contact should be alternate weekends from Friday until Monday. There should not be artificial restrictions on IGE’s weekend time with his father. Counsel submitted “he ought to have his fill of his father”. He submitted, given the level of conflict between the parties, IGE’s interests were best served by changeover occurring at school and the father being involved in school on Mondays. Counsel submitted that IGE has not absorbed the violence. Mr JL’s report to some extent supported that view. He said at page 5 of his report:
Nor was it apparent that IGE has absorbed violence or violent ideation. Rather he described his most favoured activity as caring for his rabbit.
In submitting on the various Section 68F(2) factors, Mr Bullock for the mother properly acknowledged that IGE has a strong attachment to his father. Mr BLL, a neighbour to the father at KE, deposed to observing the happy interaction between IGE with his father regularly both before and after the parties separation. Ms TR, a neighbour whose son is friendly with IGE, deposed to observing a close relationship between IGE and the father. IGE was often in her home playing with her son, and the father used to include her son in activities with IGE. The father deposed to a very happy week with IGE in the Christmas school holidays when he took IGE camping with members of his extended family. He said they were fishing, swimming, playing tennis, and learning to put up a tent. It is clear IGE is very close to his father.
I have made no findings as to whether the father or the mother have been physically violent towards each other. However, I have decided the father has denigrated the mother over a considerable period and that IGE is aware of his attitude to the mother. The father has involved IGE inappropriately in the conflict by having IGE seek to persuade the mother to give him extra time with him, despite orders of this court. He has inappropriately recorded conversations with IGE to build his case, having his solicitors and IGE’s school principal listen to them. At times when giving evidence, he seemed desperate. Although I have found the father has limited insight into the impact of his conduct on IGE, I am nevertheless satisfied the father is genuinely motivated and believes he has IGE’s best interests at heart.
Section 68F(2)(a) is a factor in this case, to which I must give consideration. The Full Court in H v W (1995) FLC 92-598 said:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
The court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
IGE is only 6 years of age and I have therefore given his express wishes limited weight. I am satisfied however that IGE wants more time with his father and that it is in his best interests to have more time. I accept the evidence of Mr JL that he should have substantial weekend contact. There is merit in the father’s case that to remain until Monday would avoid a changeover at the mother’s place. However, I am persuaded by a number of factors that IGE should be returned to his mother on Sunday afternoons: Mr JL said IGE should have less exposure to the father if I am satisfied there has been a campaign of denigration by the father against the mother and I am so satisfied; I have decided the father has inappropriately involved IGE in the dispute; the mother is anxious about the effect on IGE of overnight contact. As a result of my decision for IGE to spend two rather than one night with the father on alternate weekends, I have decided IGE should see his father on one rather than two afternoons each week, but until 7.00p.m. rather than 6.30 p.m. That time will extend to 7.30 p.m. during daylight saving periods.
Mr JL thought it might be preferable in this case to have prescriptive rather than open-ended orders and I am persuaded that it is in IGE’s best interests that I make prescriptive orders. That does not preclude the parties from making other or alternative arrangements for IGE if they believe it is in his interests.

Changeover arrangements

The mother asked that changeovers continue at the McDonalds Restaurant in CH with the father being responsible for IGE’s collection and delivery. The father asked that changeovers occur at each party’s residence and that each party be responsible for one trip.
I am not persuaded there is any reason for an order to be made on a final basis requiring the father to be responsible for all travel into the future. Neither am I persuaded there is any reason for an order to be made requiring changeover to occur away from the parties’ homes. The parties presently live about 10 minutes apart. The father deposed to an intention to move to CH, even closer to the mother, if he sells his KE home. Mr Bullock for the mother submitted that when there is a high level of conflict between the parties it is generally preferable for changeovers to occur away from the parties’ homes. Mr Bullock also submitted that the mother had an unreliable motor vehicle and was close enough to McDonalds in CH to walk to changeovers if necessary. I have decided to make an order for both parties to attend post separation counselling to address their communication problems for IGE’s benefit. IGE will be better served if he can see that his parents are sufficiently trusting to allow contact changeovers to occur at their homes. However, because of the mother’s concern about her motor vehicle and because the parties will need time to address their communication problems, I have decided it is appropriate for the father to be responsible for travel for a reasonable period before the parties undertake shared travel. I have decided a little over 12 months is a reasonable time.
I am satisfied that the orders I have made are in the best interests of IGE.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Collette McFawn

Date: 1 March 2005