Keith and Zemlinsky

FAMILY COURT OF AUSTRALIA

KEITH & ZEMLINSKY

[2013] FamCA 742

FAMILY LAW – Parenting; further disputed orders after final orders made in 2010 – Necessity to control extensive orders relating to parental conduct where there is poor communication – Equal shared parental responsibility will not work – Presumption rebutted – Questions about power and appropriateness of ordering parents to medicate a child.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Aldridge and Keaton [2009] FamCAFC 229
AMS v AIF (1999) 199 CLR 160

APPLICANT:

Ms Keith

RESPONDENT:

Mr Zemlinsky

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8374

2009

DATE DELIVERED:

28 August 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

26, 29, 30, 31 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Trim

SOLICITOR FOR THE APPLICANT:

Perisic & Thomas Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O'connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbayannis Lawyers

Orders

That all previous parenting orders are discharged.
That the mother and the father have equal shared parental responsibility for B born … 2006 save that the mother shall have sole responsibility for decisions relating to the child’s health and education.
That save as otherwise set out in these orders, the child live with the mother.
That the child live with the father during school term periods as follows:
(a) On each Wednesday afternoon from 3.30pm until 7.00pm;
(b) Each alternate Friday from 3.30pm until 7.00pm; and
(c)Each alternate weekend from 3.30pm on the Friday until 7.00pm on the Sunday.
That the child live with the father during school term holidays as follows:
(a)in odd numbered years, for the first half from the conclusion of the school term until 4.00pm on the second Saturday of the term holidays; and
(b)in even numbered years, for the second half, from 4.00pm on the second Saturday until 7.00pm on the Saturday before the new school term resumes.
That the child live with the father during long summer school holidays as follows:
(a)in odd numbered years, for the first half commencing at the conclusion of the school term; and
(b)in even numbered years, for the second half which shall be deemed in each year regardless of the number of days involved in the holidays to commence at midday on 8 January and conclude at 5.00pm on the day before the first term of the year commences.
That the child spend time with the father on his birthday in each year from 3.30pm to 7.00pm if it is a school day but otherwise from 9.00am until 4.00pm if it falls on a weekday which would otherwise be a day spent by the child with the mother.
That the child spend time with his father on Father’s Day from 9.00am until 7.00pm if it is a day that the child would have otherwise spent with his mother.
That for the purposes of these orders, the long summer holidays shall not include Christmas Day or Boxing Day.
That the child spend time with the father from 4.00pm on 24 December 2014 until 3.00pm on 25 December 2014 and for a similar period in each alternate year thereafter.
That the child spend time with the father from 3.00pm on 25 December 2013 until 7.00pm on 26 December 2013 and for a similar period in each alternate year thereafter.
That if the period from the eve of Good Friday until Easter Monday is not included in the Education Department (Victoria) calendar as a school holiday, the child spend time with the father:
(a)from 4.00pm on Easter Saturday until 4.00pm on Easter Sunday in the first of those years and for a similar period in each alternate period thereafter;
(b)from 9.00am on Good Friday until 4.00pm on Easter Saturday in the second of those periods and for a similar period in each alternate year thereafter.
That any time between the child and the father is suspended on Mother’s Day from 9.00am until 7.00pm.
That any time between the father and the child is suspended on the mother’s birthday if it is a school day between the hours of 3.30pm and 7.00pm and if it is a weekend that the child would be spending with the father, from 9.00am until 7.00pm that day.
That all changeovers of the child between parents shall occur at the child’s school unless the child is not attending school on the relevant day. For that purpose, the father shall collect the child at the school at the conclusion of the school day. If the child is not at school, the father shall collect and return the child at the front of the mother’s residence.
That all parties forthwith comply with existing orders to change the child’s surname from Zemlinsky to Zemlinsky-Keith.
That pursuant to these orders, the mother be solely authorised to obtain a passport for the child to be retained by her and the father’s consent is not required.
That notwithstanding the mother has sole parental responsibility for matters of education, the father be entitled to:
(a)to attend any school event subject to any direction to the contrary of the principal;
(b)participate in any school activities subject to any views to the contrary of the school principal;
(c)be entitled to receive school photographs, newsletters and other documentation provided by the school at his expense; and
(d)attend any school parent/teacher meeting by arrangement with the school principal.
That notwithstanding the mother has sole parental responsibility for medical matters, the father is entitled to attend upon any doctor or other health professional treating the child and to be given information about the treatment and general health of the child
That notwithstanding the mother has sole parental responsibility for education and health issues under these orders, she shall keep the father advised at all times in writing of matters associated with the child’s health and education that relate to long-term issues.
That the Independent Children’s Lawyer is discharged from the proceedings.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 30 August 2013 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 13 September 2013 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.
That all extant applications are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keith & Zemlinsky 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 MELBOURNE

FILE NUMBER: MLC 8374 of 2009

Ms Keith

Applicant

And

Mr Zemlinsky

Respondent

REASONS FOR JUDGMENT

This parenting dispute concerns the child B who was born in 2006 during a relationship between Ms Keith (“the mother”) and Mr Zemlinsky (“the father”).
B lives predominantly with his mother and there are court orders in place but both parents wish to change them.
The mother was the applicant and she sought orders that:
·    She have sole parental responsibility but that she make decisions after consultation with the father;
·    B live with the father on each Wednesday from 3.30pm to 7.00pm, each alternate Friday from 3.30pm to 7.00pm and during each alternate weekend from 3.30pm Friday until 7.00pm the following Sunday;
·    She and the father share school holidays;
·    B live with her at all other times;
·    Changeover occur at the child’s school.
One significant order sought which highlights the nature of the dispute was for the father to administer prescribed medication to the child when in his care. All agreed that that issue was pivotal and indeed, much of the hearing revolved around that dispute. For much of the last two years, the child has been undergoing a bevy of assessments endeavouring to ascertain an explanation for his behavioural traits. The mother accepted the opinion of a variety of experts which came down to the fact that the child has attention deficit hyperactivity disorder (“ADHD”). The father has not accepted that diagnosis although he maintained either that he had or that he would. Even as late as the closing addresses in this case, I found his position confusing and unclear.
The significance of that diagnosis was that the paediatrician to whom I shall refer below prescribed Ritolen medication and for the last five months, the mother has dutifully administered it but the father has not. Again, his position was confusing. He maintained in evidence that he had never been given directions about the medication but that, subject to some conditions being fulfilled, he would administer it. Again, as late as his final address, he indicated an acceptance that the medication needed to be administered. I have a strong doubt that he accepts the diagnosis or that he will administer the medication and even if he does the latter, it is clearly under sufferance on the basis that he does not believe the child needs it because as he sees it, with some behavioural controls in parenting, the child has just some relevantly minor behavioural problems.
Thus, this issue dominated the proceedings.
The mother also sought orders which indicated that, at least from her perspective, every eventuality had to be covered by orders of the Court. Those orders included the resolution of a dispute about the registration of the child’s surname and that each party be thereafter restrained from using any name other than a hyphenated name. Such was the mother’s perception that she also saw the need for injunctions about the movement of the child not just outside the Commonwealth of Australia, but also the State of Victoria. She sought injunctions about the parties’ behaviour towards each other. She even sought an order including a restraint on herself from excessive consumption of alcohol and the taking of illicit substances.
This case oozed with poor communication, no trust and dysfunctional parenting. It is sad that a court has to regulate not only the life of the child but also his parents who are charged with having the significant role in his welfare and development. The role is difficult enough but more so as the child now has ADHD.
The mother throughout the proceedings was represented by lawyers who no doubt canvassed these extensive orders. As I pointed out however, the parties had final orders made in 2010 which were so extensive that they looked like they had rolled off a lawyer’s precedent bank to cover every possible eventuality. A court should be cautious about making such orders even by consent of the parties without some recognition that the over-regulation of the parties’ lives such as here, sets up ongoing problems associated with definitions let alone compliance. If the parties are never going to negotiate the issues about their children, and that was the case here, over-regulating them, simply adds to the dilemma. It would be far better, as it is here to reduce the conflict by allowing one party to make decisions.
The father represented himself in the final hearing. He filed a response but informed the Court that he was seeking to vary his written position. He sought 13 pages of orders along the following lines that:
·    He and the mother have equal shared parental responsibility but if agreement was not reached, he was to make decisions about the child’s education, health, religion, sporting and like activities and overseas travel;
·    The child live with the parents on a week-about basis but otherwise, the parents share special occasions and holidays;
·    Changeovers occur at school or the other parent’s home;
·    Each parent be restrained from removing the child from Victoria without notice;
·    Both parents apply for a passport for the child. If the father takes the child overseas, he give the mother appropriate notice and “a proposal” for “make-up” time be sorted out between the parents;
·    The mother attend a post-separation parenting program; and
·    Injunctions about the surname use relating to the child.
The other extensive orders sought by the father indicated a similar approach to that of the mother but again, indicated no ability to trust each other or have any mechanism for the resolution of problems about the needs of the child let alone long-term decisions for his future. Interestingly therefore, his approach to a shared weekly arrangement has to be contemplated in that environment. In my view, after hearing the evidence, a sharing arrangement would not only not work for the child or these parents but would be positively destructive.
Counsel for the Independent Children’s Lawyer reserved his position but confirmed as the case began that he did not support the father’s position. As the case concluded, counsel for the mother reduced the number of orders that she was seeking from what she opened the case on but there were still matters which in my view, would not be proper orders to make.
Counsel for the Independent Children’s Lawyer took the view that the mother should have the decision-making powers in relation to education and health on the basis that it would not be likely that the father would medicate the child. Counsel otherwise argued that the father’s alternate weekend time should conclude on the Monday morning to avoid a parental confrontation and in any event, if the mother medicated the child at school, that would be sufficient. It is with that latter position that I disagree.
The father’s final position was an emotive one. He traversed the reasons why his week-about arrangement should be ordered and he tearfully told the Court that he did an enormous variety of things within his new family in which the child is a significant part. Sadly, whilst I accept without any hesitation that the child loves his father and the reverse is also true, the longer-term picture for the child in that sort of environment is perplexing.
The parties have an unsurprisingly litigious background having regard to their views about each other.
On 27 May 2010, they agreed to final orders in the Federal Magistrates Court. At that time, both were represented by counsel. Those orders provided in essence that the parents have equal shared parental responsibility and that the child, then 3½ years old, live with the father on Wednesdays from 3.30pm to 7.00pm, on alternate weekends from 9.00am on Friday to 7.00pm on Sunday and on the other Friday from 9.00am on 7.00pm. That regime was to continue for five months and then time was to be increased to the Monday morning to include the weekend.
The 2010 orders provided for two block periods per year as well as ancillary orders. The two block periods however required the parties to reach an agreement. That was a serious bone of contention between them and it never worked.
Ironically, and with the benefit of hindsight, it is significant that those orders provided for:
(a)the parties having equal shared parental responsibility; and
(b)the significant time between the child and his father bearing in mind his very tender years.
Comment was made during the opening remarks about the fact that the parties had never litigated and that therefore their various compromises, extensive as they were, had created the problems.
It was not long after the 2010 orders that things began to go wrong and the Court file shows the numerous disputes that arose. Before dealing with them, because they explain why the parties are back before the Court, the background can be succinctly stated.
The mother is an administrative manager and the father is a development engineer. The mother is 39 years of age and the father 42 years of age. They were in a relationship from July 2006 to March 2009. They did not marry one another. There is some significance in the last two facts because in filing his amended response on 11 June 2013, the father sought property alteration orders. He had not raised that with the Court previously even if it was mentioned in affidavits. Indeed, in filing three prior responses with the Court, he had not sought financial orders. When he did so in June 2013, the mother objected because there was no application for leave to bring the application out of time.
The father’s pursuit of his application was well outside the two year statutory limitation and even though he explained that he had left those matters to concentrate on the parenting issue, it remains the fact that he had had legal advice on his own concession and had not sought leave under s 44 of the Family Law Act 1975 (Cth) (“the Act”).
I accepted the mother’s submission that not only was there a jurisdictional problem but the lateness of the application was inappropriate. That part of the response was therefore struck out.
B is the only child of this union but the father has re-partnered and has a child from that relationship. His current partner also has three children one of whom lives with the other parent.
When the proceedings began, I reminded the parties of the first day hearing I had conducted in March 2013. I pointed out that the evidence in chief was to be by affidavit and previous affidavits could not be relied upon as evidence in chief. I had suggested to the father in that March hearing that he should get legal advice before filing his affidavit having regard to the possibility that his material might contain matters that were not relevant and therefore not admissible. He explained to me that he had been unable to afford a lawyer and even the community legal service wanted a payment from him.
Upon the application of the mother that I rule on objections to admissibility of evidence, significant portions of the father’s affidavit were struck out. I undertook a similar exercise in relation to the mother’s affidavit albeit it had been drawn by her lawyer. Notwithstanding Division 12A of the Act, evidence is not admissible unless it is relevant within the meaning of ss 55 and 56 of the Evidence Act 1995 (Cth). In contentious matters such as this, lawyers drafting affidavits still need to remain objective and endeavour to prove matters properly. That did not happen here and it made the task so much more difficult with a litigant in person.
The issues for determination therefore were the following:
·    Should the parents have equal shared parental responsibility or should one of them make major long term decisions relating to the child?
·    Should there be a shared week-about care arrangement or, bearing in mind the father’s concession, should the child live predominantly with the mother?
·    Should there be an order directing the father to medicate the child?
·    Should there be orders for hand-over if the child is not at school at a particular point to avoid confrontation?
·    Should there be some obligation on the father to return the child if he is distressed (as seemed to be asserted by the mother but without any evidence) or should the parties have orders that they must offer the other parent the option of caring for the child if they are at work or unavailable?
·    And what (if any) order should be made to change the registration of the child’s name?

Notwithstanding the myriad of problems between the parties, the real dispute can still be seen in relation to the ADHD problem. In my view, that issue was remarkably straightforward but before turning to the parties’ positions and evidence, the evidence of two witnesses was extremely helpful if not critical to the determination.

Ms C

Ms C is a primary school teacher who has had the responsibility for the child in his preparatory year in 2013. She was called by the mother in response to a subpoena. She had met the child in the transition period in 2012 from kindergarten. In 2013 from the end of January to the middle of March, Ms C had the child as one of her 19 pupils. In that period, the child found it difficult to sit still, needed an aid, was aggressive and unapologetic towards other students. The child threw blocks and would not listen to adult instruction. He kicked children and clearly struggled to fit in.
During this first period of his schooling, the child was regularly put into a “time out” arrangement two to three times per day. Whilst there were “good” days, it seems they were few.
At this point, it is worth remarking that the parties’ views about this period were remarkably at odds. The mother was not only struggling with all of that sort of behaviour at home but was also being told by Ms C of the dilemmas. She was aware that Ms C had a colour card system being used to identify various levels of poor behaviour. Ironically, the father knew nothing about all of that notwithstanding he was attending the school at various times.
Ms C said that the father attended the school and she described him as waving around the Court’s orders and she found him intimidating. She knew well, from the mother, the father’s opposition to the child being medicated at that stage so when she met with the father, she did not raise the subject. It must have been a daunting task bearing in mind that the child was a challenging child whose father did not see any justification for any medication to calm things down. Contrary to her relationship with the father, Ms C had no problems in her communication with the mother.
In March 2013, the child was prescribed the medication. Initially, he was to be medicated every four hours so even the school took responsibility for it as well as the mother.
Upon the commencement of the medicating program, Ms C saw an almost immediate and positive change. There were some initial difficulties but when she spoke to the treating doctor, the dose was changed to a slow release one and the child responded positively.
Now, the child is doing really well except where there is a relief teacher and some problems recur. He is well liked and his company is sought out by other children and he is appreciated. He is, to use Ms C’s words, “a different kid”.
In his evidence, the father said that the teachers had told him that the child had normal boy type behaviour and there was nothing out of the usual in relation to him. Ms C denied the picture was as portrayed by the father.
The father asked Ms C in cross-examination if she had told him that the child did not need medication and she responded by saying that she questioned the need but that came from her uncertainty about whether the child had opposition defiance disorder or ADHD and in respect of the latter, she thought he would need medication. She said the father told her that the child did not have ADHD and that he did not therefore need medication.
Bearing in mind the challenges that Ms C was facing, the observation about the remarkable change in the child’s behaviour after medication was very poignant. Her task was made so much easier and her relationship with the father is now much better. However, Ms C also acknowledged that at no stage did she raise the question of medication and I have no doubt that it was the “elephant in the room”.
Having regard to the picture portrayed by the father in not only his evidence in chief in the affidavit but also in cross-examination which I find was an embellishment of the truth, Ms C’s evidence was very important. I found her disarmingly truthful and very accurate in her recollection of events. Accordingly, I accept her evidence.

Dr D

Dr D is a consultant paediatrician who is treating the child.
Dr D was required for cross-examination although I am still unsure why. Despite my uncertainty about the necessity to call him, his evidence was extremely helpful.
Dr D along with Drs E and F held a professional meeting on 22 November 2012. It will be recalled at that stage that the child was in his second year of kindergarten. Dr F presented details of her assessments of the child to that gathering. At the time all of these medical professionals were dealing with the child, he was struggling in kindergarten behaviourally. Dr D based his opinion on part of what Dr F said.
In cross-examination of the mother, the father put to her that Dr F was not an expert in ADHD. That was an absurd question. The mother observed that Dr F thought she was because she noted that very speciality on her own letterhead. Dr D soon dispelled any uncertainty by indicating that he recognised Dr F as an expert.
The father said he believed Dr F did not consider that she had the appropriate qualifications to diagnose ADHD. I am uncertain whether the father was being deliberately obtuse or simply avoiding the inevitable.
The medical consensus of the three doctors was that the child had ongoing developmental concerns and they thought that, in November 2012, he was at risk socially, emotionally and educationally. Almost prophetically, the professionals wrote that medication for his intrinsic attentional difficulties might be required.
In May 2013, Dr D said that the child had ADHD, anxiety and some speech delays. He noted the problems that Ms C had noted and he prescribed the medication and that it had shown remarkable signs of behaviour improvement in the child. That simple evidence was substantially expanded upon by Dr D when he was called to give evidence. Dr D had the benefit of his notes and substantially expanded upon his relatively simple affidavit evidence. He said that in March 2013, the child had behaviour which was described as “over the top”, hyperactiveness, he was anxious, obsessive and overly excitable. Ironically, that is what Ms C observed and also the mother. Based upon his experience of the child, Dr D recommended a trialling of the drug. Before he prescribed the drug, he had spoken to the kindergarten teacher so he knew what behaviour traits the child had.
After prescribing the medication, Dr D had a consultation with the father. According to his notes, the father described the child’s behaviour as nothing out of the ordinary. He said the father indicated that there were no behavioural concerns and that where there was, he felt the problem could be resolved by firm boundaries, rules and consistency along with the child sleeping well. The father told Dr D that he had not observed what Dr D had.
In relation to medication, Dr D told the father about his views on the diagnosis and the prescribed medication.
In a distraction to the real issue, it became apparent that Dr D was somewhat embarrassed about the fact that the father had not been included in the discussions about the diagnosis and the prescription of medication. Having regard to the evidence I heard from Ms C and the evidence of the mother, Dr D would not have needed to have felt embarrassed because it would not have mattered what he told the father, the reaction would have been the same.
Dr D was sufficiently troubled about the child to follow up after the medication and he found from the teacher just exactly what Ms C had said to the Court. He noted that the child remained calm, there were no issues at school, nor was he waking or having difficulty sleeping but he was a picky eater during the day. In relation to the eating habits, Dr D said that that was a symptom of the medication but it did not alter a child’s growth. Because of the problems associated with the medication, Dr D altered the prescription from short term dosage to the slow release which has been so successful. He too saw the child subsequent to the treatment being commenced and noticed a dramatic difference.
Dr D however did not just consider the ADHD problem. He was concerned about the child’s mental state because of what he described as the home-based tensions. He was aware of the acrimony between the mother and the father. Because of that, Dr D referred the child to CAMHS. He thought later however that that was not necessary when he observed the significant changes in the child and the response of the mother. It was always part of the father’s evidence that this assessment needed to be carried out but Dr D was not troubled about it any longer. What is more important however is that I accept that the mother was completely compliant and cooperative in relation to all of those things even if she had rarely involved the father in any discussions.
Dr D was asked what difference the medication made to the child. In simple terms, Dr D said that if there was no medication, the child’s quality of life was much poorer. He gave analogies which indicated that the child could do so much better because of his ability to concentrate and take in information whereas otherwise he would be significantly distracted.
Dr D also confirmed that in addition to the medication, routine was important for the child because he was a child with special needs. If there was a routine structure, combined with the medication, the child was more likely to remember the things that were important. Absent a structure, the child was likely to become distressed with change because he became confused and overwhelmed. Medicated appropriately, the child could think through things and cope with change. That led to a stress-free environment.
Dr D was asked questions about the drug itself. It is currently administered each morning at 7.00am and by 7.30am the child gets out of bed and is calm, relaxed and ready for school. That however does not occur on the Monday mornings after the child has been with his father because there has been no medication administered over the weekend. The mother travels to the school on the Monday morning, meets the child at the school gate and the provides him with the medication which then works some 30 minutes later. If however the child is “wound up” as he might very well be, the time for the medication to work may take longer.
The mother was asked how much longer she could continue to undertake that task, and while she indicated she could and would do it, it was clear that it is not a responsibility she relishes having regard to her work responsibilities. The simple solution would have been for the father to provide the medication.
Rather than concentrate upon the medication issue and the ADHD, the father cross-examined Dr D about some issues that he had told Dr D about. He asked Dr D whether he had gone into detail with him about the ill treatment of the child by the mother. Dr D replied that it was simply about a distinction in parenting styles. The father then asked Dr D whether having been told what he had been told, he was shocked. Dr D remarkably replied that he was shocked but not in relation to what the father was telling the Court about but rather as to the father’s degree of anger and distrust of the child’s mother.
At no stage during his cross-examination of Dr D did the father challenge the diagnosis. Dr D made clear that he was more than willing to be helpful with the father to understand the child’s needs. The father’s evidence was clear however that he had not made the effort to find out the details about the medication and I reject his suggestion that he had not been given any direction. He knew well that the doctor had prescribed the medication and in my view, he studiously avoided the subject. He did exactly what he had done with Ms C.
It is also important to note that Dr D confirmed what was in the affidavit material of Dr F. Dr F who is in the same clinic as Dr D had had numerous attendances on the child and the mother and at no stage had she seen any aberrant parenting behaviour or any concerns that might suggest ill treatment by the mother as alleged by the father.
The observation therefore of Dr D about the child being caught in a conflictual relationship between the parents was not only relevant but also consistent with the evidence of the mother.
The father’s position on the medication was put to Dr D. He asked Dr D whether he had told him about all of his researches on the internet into the behavioural issues. Dr D commended the father for that process. What was evident however was that Dr D said that if the child was medicated, life was remarkably better.
Dr D’s evidence was forthright and helpful and has a very significant influence in my determination that the child should return home to his mother on the Sunday night of the father’s weekends and a little early from school holidays before resuming school so that he can not only be medicated on the first day of school but that he can settle and not be “overwhelmed” as concerned Dr D.
Dr D was asked whether there was a problem for the child in not being medicated during school holidays. Dr D thought there was not. Dr D was of the view that there was no adverse effect on the child but it is quite clear that if the child is medicated, he thinks better, understands better and progresses better. That is a significant issue in this case. I find the mother accepts Dr D’s evidence but I am not at all sure that I understand what the father’s position is because even after Dr D gave evidence, he said he would medicate the child conditionally. His final statements in a final address were to the effect that he would medicate the child but I am convinced he does not understand what the problem is.

Cross-examination of the mother by the father on the issue of medication

The mother said that she trusted the experts and followed their advice. She was pleased with the results.
The father asked the mother a lot of questions about whether she told him of the medication. It is clear she did not other than by text message after the child’s weekend. When asked why she did not inform him, she replied that she had no reason other than the fact that she was unsure what effect the drug would have on the child and she wanted to give it a chance to see how it went. To some extent, that explanation was plausible but I also accept that the mother has reached a point where communication with the father is limited and stilted. In any event, why it was entirely the mother’s responsibility remains something of a mystery because as I earlier indicated, the father spoke to Dr D himself.
The father also asked why the mother had not kept him informed in relation to appointments that the child had with Dr F to which I earlier referred. Her response was that they were just assessments and there was no diagnosis until 2011 whereupon she notified him a day or so later. Again, the perplexing issue is that both parties had equal shared parental responsibility and yet the father seems to have taken very little time to sort out the problem himself with these professionals bearing in mind his own statement that the mother was constantly breaching orders.

The father’s cross-examination of the mother about communication

The father put to the mother that after 2009, he had made approaches to work together in relation to issues about the child. The mother’s blunt response was that those requests were made for his benefit rather than anything to do with the child. She said, in terms of offers to meet, there was one occasion when the father suggested that they meet over coffee.
The father highlighted examples of poor communication in which he alleged that the mother abused him and wrote messages in their communication book and in text form. Her response was that she was simply responding to his messages. She readily conceded that she used pejorative language calling him an idiot and insane. She maintained however that none of those messages were said in front of the child.
The father relied heavily on the fact that when there had been confrontation, the police were called. Doing the best I can on the evidence, it seems that those incidents were mostly over disputes as to whether or not the father was overholding the child and just what the orders meant. The father accused the mother of being a liar but I did not find anything in her evidence that would convince me that that was the case.
The father pointed to his messages about kindergartens and primary schools and put to the mother that he had endeavoured to work those things out and that she had been uncooperative. Having regard to the evidence of the mother to which I shall turn below, I have little doubt that it was the father’s unilateral action that caused the problems and I am not at all surprised that the mother “shut down”.
The parties even had a dispute about school uniforms which came to light when the father asked questions about the fact that he had had to ask for the provision of a uniform and that the mother had told him to get his own. The mother responded by telling him that she did say that but that was because he lost things and she was constantly buying new ones.
There were questions by the father about text messages between the parties over a bruise on the child’s eye, the mother’s brother showering with the child, and arguments about whether the father could go to Queensland with the child for the undefined but to be agreed periods set out in the 2010 orders. There were questions about what time the child was to spend with the father on his birthday and all of this was in text form. All of the answers given by the mother were plausible and simply highlighted there has been a complete breakdown of communication between the parties such that they have never been able to agree on what the appropriateness was of the father spending a block period of time outside of the normal weekends and even with whom the father was living and where.
The mother was asked about the father’s new partner and she conceded that she had not met her and knew little about her.
As the cross-examination ground on, the father put to the mother that they should work together to find common ground. The mother readily agreed but then said it was impossible.
The focus of the father’s cross-examination was relatively limited notwithstanding it went for a long time but at no stage did he put to the mother any specific examples of her breaches of the order to justify a finding of a serious flagrant breach. Rather, he resorted to generalisations none of which I could see were established in the evidence.

The father’s evidence

In his trial affidavit filed 11 June 2013, the father was dismissive of the fact that I required his evidence to be comprehensive in relation to the significant issues in dispute. He referred to previous affidavits where he said that all of his text messages were set out. Even in re-examination, I gave him an opportunity to expand on what he meant to show the Court that the mother was defiant of court orders and dismissive of his responsibilities as a parent. None of that evidence convinced me that the mother was doing any more than ignoring him having regard to the approach that he had taken towards her.
As I earlier indicated, the critical issues in this case related to the sense of responsibility for the future for the child particularly in relation to medication and the question of whether or not a week-about arrangement would work. The evidence the father presented was simply critical of the mother and made no acknowledgement of his own faults. He acknowledged that the absence of communication was having a detrimental impact on the child but kept saying that he hoped it would change. Nothing he put to the mother indicated that the hope would become a reality.

In his affidavit, the father said that the mother was a liar, an incompetent parent and worse, she had deliberately endeavoured to have the child destroy the relationship with him by offering him rewards to do so. Not only was there no evidence of any of that, but was not put to the mother in cross-examination. Importantly, nothing I heard or read would suggest that any of that was even in the mother’s contemplation or for that matter, in her interest to do so. Those allegations say more about the father than the mother. I can therefore well understand why her frustration ran to boiling over point with abusive conduct by her.

The father’s position on the medication

I have indicated earlier the confusion I have about just what the father’s position is. In his evidence, there was no such ambiguity. At paragraph 127 of his affidavit he said:
I have stated, I strongly oppose the child being medicated for ADHD, on the basis of the following information;
·   That a complete and thorough assessment be carried out in accordance with the Draft Clinical Practice Points on attention deficient hyperactivity disorder (ADHD) in children and Adolescents by [Dr E].
·   That all strategies including encouraging good behaviour, praise and encouragement, boundaries, rules, routines, time out, counting one, two, three and so on are exhausted.
·   The measure’s [sic] established since 2011 and 2012 have clearly been working according to various reports and discussions from and with [G Day Care], [Suburb H] Kinder, Specialist Children Service’s [sic], [Dr F], [Dr E] and myself.
·   Since the child commenced Prep in 2013, all reports from the child’s teachers have been that the child is doing really well.
·   During a discussion with the childs [sic] teacher, I was informed they didn’t believe [the child] had or showed signs of ADHD, they couldn’t understand the large discrepancy with the information that had been provided to them by [Ms Keith].
On any view, that evidence by which the father stood as late as going into the witness box to give evidence made it clear that medication was not only not his preferred position but that even if it was to be so, it was to be conditional. The father repeated his position as follows in paragraph 133 of his affidavit:
[the mother] is trying to come up with an argument to reduce the child’s time with me.
·If [Dr D] finds that the child should be medicated after all monitoring of his behaviours have been conducted, looking at strategies including encouraging good behaviour, praise and encouragement, boundaries, rules, routines, time out, counting one, two, three and so on are exhausted then I will medicate [the child] as required.
Paragraph 133 of the father’s affidavit makes it clear that his position was not only that the medication should be conditional but that the mother was deliberately running the medication argument for the purposes of reducing his time. I emphatically reject that evidence.

The 2010 orders relating to the five days and four nights issue

It was the father’s evidence that the mother had breached the court orders of 2010 by refusing him time with the child under a paragraph which provided that in addition to the various stated times, he was to spend five days and four nights by agreement once a year. It was palpably obvious that the parties were never going to reach agreement. The father conceded that in frustration, he took that time, added it to a weekend and ignored the mother’s protestations. For some considerable time in the witness box, the father evaded the real issue which was that the five days and four nights was to occur by agreement. The order was clearly silent on any default position. The father did not take the matter back to court to clarify the issue. When he could not obtain an agreement, he unilaterally took the law into his own hands. Whilst there might very well be justification for criticism of the mother for refusing to compromise and agree on a date (as she should have) it remains the fact that she had shut down from the negotiations and the father bulldozed his way through the problem. Simply taking the five days and four nights unilaterally was one thing but then to add those days to the weekend was hardly within the obvious spirit of the orders in any event. That incident indicates that there is no prospect of any communication between the parties let alone negotiation or compromise making a complete farce of the order of 2010 for equal shared parental responsibility. I do not see any prospect of any change in the future. By the same token, that same indication shows that a week-about arrangement could never work. The parents have totally different views about how the child should be raised and the medication is only one indication of that problem. They disagree on sporting arrangements and their level of communication to reach agreement is very basic. There is no prospect in this case that I can see of any common parenting arrangement for the child.

The mother’s evidence

The mother’s evidence was set out in her affidavit filed 29 April 2013. Two singly important pieces of evidence which I accept, came out of cross-examination. First, there is no prospect of communication and she acknowledged that. That has continued now for the best part of four years. The mother was asked whether her communication with the father might be improved by counselling and she said that it could be but then she rhetorically asked why it would when it had not worked in the past. Counselling has been tried. When challenged about her own behaviour, the mother replied that she was “only human” and acknowledged that she had become frustrated and lost control. Having watched the dogged approach of the father throughout these proceedings, I am not entirely surprised. She said (and he agreed) he told her he could not wait to get her into court and constantly told her that she was breaching orders. None of the evidence that I could see justified those sorts of comments.
Whilst all of this was happening, the mother was undertaking the assessments with the various professionals to whom I have earlier referred as well as struggling with the child’s behaviour in an environment where the father was very critical of her indicating that the child had no such problems. Accordingly, I would be very slow to criticise the mother under those circumstances.
The second issue is why she wanted to curtail the return of the child from his father on Monday morning and return him to her on the Sunday night. As I have earlier mentioned, there is every good reason for that to occur so that she can medicate him but at the same time, if she continues the current arrangement, it must be embarrassing for the child sooner or later when children understand that he is attending at school to meet his mother after he has spent a weekend with his father and his mother is medicating him. The most successful way for the child to settle quietly into school is to be medicated at home on the Monday morning and I accept that the mother will do that.

The complaints about the father’s conduct

Much has been said in these reasons about communication and the medication but there is other evidence that is concerning as well.
The mother complained that the father described her as a “nut case” and that she was a “disgrace”. She described the latter comment being made at a time when he was laughing at her. Sadly, the father conceded that. There is some significance in that evidence because the father in his evidence, described her as a liar. She was clearly not lying about that.
The mother alleged in the communication book the father wrote that she was a bad person and a bad parent and that she did not care about the child. As I earlier indicated, none of the evidence of the experts such as Dr F saw any of that sort of problem to the extent that the welfare authorities might need to be called in. The father did not deny that. He agreed that on occasions he could have chosen his words better but that he then justified his position by saying that the mother had driven him to the point of desperation and grave concern for the child “on so many occasions”. The communication book was not tendered in evidence at least to the specific entries in relation to this and it is not appropriate for the Court to try and draw conclusions from the general assertions where they have not been proved.
The mother complained that the father had made complaints about her parenting to the Department of Human Services as well as others. In cross-examination, the father agreed that at least on 10 to 15 occasions he had telephoned the Department of Human Services. He also conceded that none of those had ended up in an investigation and certainly nothing in which the mother had been spoken to by the Department. I again repeat what Dr D said about his observations of the father.
Another example of the difficulty that the child has faced arose during his kindergarten years. The parties could not even agree on the child spending a second year in kindergarten in circumstances where it had been recommended. In a bizarre twist, at the commencement of the second year, the father enrolled the child in a different kindergarten to the one that he had attended the previous year. When the mother endeavoured to take the child back to the same kindergarten that he had attended, she received advice from the kindergarten association in the area that until the dispute was sorted out, the child could not attend the old kindergarten. For a period of some four weeks, the child did not attend kindergarten and the mother was unable to work. It was only when the Independent Children’s Lawyer became involved and court proceedings eventuated that the compromise was reached and the child went back to where he should have been in the first place at the kindergarten that he had been at the previous year. Although the father maintained that he had been supported by the kindergarten association, I am quite satisfied that it was his unilateral action that caused the problem. He was certainly not thinking of the child’s welfare at that stage.
The name change was another incident that caused problems. Apparently, the child currently bears his father’s surname but final orders made in May 2010 required the name to be hyphenated to include his mother’s surname. The father failed to respond to the request that he sign the relevant form. The bizarre thing here was that when the parties’ respective minutes of proposed orders were matched, there seemed to be agreement. The father’s position in relation to the mother’s attempts to get the matter sorted out was that he had not received anything from the lawyers. He acknowledged he had received documentation from the government department but most importantly, despite the orders of the Court, he did nothing about it. He then justified his position by saying that the hyphenated name was confusing for his son. In my view the sensible solution is for the mother to have sole responsibility in relation to all issues so that to the extent that the orders of May 2010 need to be implemented, the mother is most likely to undertake them. To the extent that it might be thought that a hyphenated name might be confusing for a child, what better way to start than at his very tender age now.
The parties even disagree on the meaning of the 2010 order which made no provision for the word “kindergarten” in the school holiday provisions. The mother’s position had been apparently that the word “kindergarten” was not there so the father was not entitled to the time set out in the orders whereas the father took the view that the Department of Education had told him that kindergarten was the same as school and it was for that reason that the kindergarten holidays were the same as the school holidays. The mother’s position was as absurd as the father’s but what was concerning was the father’s unilateral action in circumstances where a simple application to the court that made the orders might have sorted out the difficulty. In my view, the father ignored the impact of his own behaviour on the child who was living predominantly with the mother. Sadly, when agreement could not be reached, rather than resort to the Court, the father involved the police. I am sure state police have much better things to be doing than refereeing problems created by the father.
Listening to the father in cross-examination, I find that he has learnt little and to the extent that it suited him, he would simply do whatever he thought was right.
Another of the complaints of the mother was that despite the order requiring the return of the child at 7.00pm, he was usually returned 10 to 15 minutes late and sometimes up to half an hour. The father’s response was enlightening. He said:
I generally drop [the child] off on time or within a few minutes of the prescribed time frame. I generally inform [the mother] if I going [sic] to be running late.
I am quite satisfied the father has little regard for the importance of punctuality.
The other gave evidence that after the April 2013 school holidays, the child returned to her and said:
Daddy wants you to move to Antactica.
This was in the context of the mother complaining about the father’s denigration of her. In cross-examination of the father, the Independent Children’s Lawyer asked a variety of questions about conversations between the child and he and the father readily conceded that the child talks to him about all of the problems at the mother’s home. That led the father to say in his of evidence in chief:
[B] has volunteered to me [the mother] tells [him] to misbehave when he is in my care and rewards the child for these behaviours. On many occasions the child has volunteered to me that he has secrets and that mum has told him not to tell me, however I have told the child not to keep secrets because I have fears that [the mother] is saying denigrating things about me, my family and friends.
I earlier rejected the suggestion that the mother has or would do such things but what is more concerning is the fact that I find that the father does promote the conversations with the child rather than deflecting them and being supportive of the mother’s role.
Another of the problems that arose from the 2010 orders was the fact that the parties were required to contact the other in the event that they were unable to care for the child during holidays because they were working. However, that led to positive requests by the father of the mother as to whether she was working. The mother too demanded from the father a formal statement that he was not going to be working during the week that he was to have the child. The mother then contacted the Geelong Police and asked the officer to contact the father and read to him the court orders. The absurdity of that position involving the state police could not be lost on anyone with any parenting commonsense. I find however that again because of the unilateral action usually taken by the father, he is the major problem.

Witnesses

Each of the parents gave evidence in the form of their affidavit and subjected themselves to cross-examination. I have been critical of the drafting of the affidavit material by both parties. However, as a witness, the mother was forthright, responsive and made appropriate concessions when challenged about issues where she had not complied with orders. Her explanations were plausible. To the extent that the father put to the mother that she was a liar, I could not find that to be the case. I generally accept the mother’s evidence over the father on all issues associated with credibility.
The father was evasive and very much focussed on his own needs. On the one hand, he was very critical of the mother yet on the other, he wanted the Court to understand that he was trying to get her to join with him in making decisions together. That was implausible given the state of their communication and trust as I have earlier indicated. When he asked a question of the mother she responded in a way that he did not accept, he simply shook his head and muttered at the bar table but at no stage did he pursue the point or bring evidence to corroborate his position. He had been in possession of the mother’s affidavit for months. He was not overawed by the proceedings and seemed very confident as a litigant. He was certainly not disadvantaged by his position about which he was very confident. As I have indicated in relation to the evidence of Ms C, the father was prepared to portray to the Court a view about what he had said he was told by the teachers and I accept that that was not true. Ms C was somewhat coy about the fact that she found the father intimidating but I can now see how anyone who did not agree with his position would be faced with his forceful and uncompromising attitude.
Accordingly, I find the mother a much more reliable historian and accept her evidence wherever there is a dispute between the parties.

B and health issues

The mother set out in detail all of the assessments that she has undertaken subsequent to the 2010 orders. She attended upon Dr F on a number of occasions. She implemented a number of behavioural management techniques and even tried dietary issues as recommended by Dr F. None of that improved the child’s behaviour and concentration. She attended the J Centre on a referral from Dr F. She waited at home and accepted attendances by staff from that organisation. She assisted in the assessment of the child. She worked with the Centre to develop strategies to improve his behaviour such as having a consistent routine. She attended upon a child psychologist appointed by the Specialist Children’s Services and worked with her on techniques and home visits. The child has also attended upon an occupational therapist and in 2011, had monthly sessions there. All of that indicated a dedication to the parenting role albeit poor communication with the father. Having witnessed the way in which the father behaved, I am not surprised that she did not involve him even if it may have had adverse affects upon the child and her good work being undone.
In her evidence, the mother said the father was not told of all of these things because of his argumentative approach. She said that if she actually asked him about things, she thought that he would refuse so she just went on doing what needed to be done. In his reply to that evidence, the father’s response was that the mother was simply coming up with an excuse for breaching the court orders by not including him. He denied being difficult and argumentative. I reject his evidence.

The final submissions

The final submissions of the mother were simple. Counsel indicated that the orders proposed by his client were necessary because were they not made, the child would suffer as a consequence. Specifically, counsel urged the Court to make an order that the father be directed to medicate the child.
The father submitted that a week-on/week-off order would reduce the conflict between he and the mother but also that the child would experience an extensive family. He said he had a partner and a young baby and the child was very much a loving part of that arrangement. That week-on/week-off arrangement would enable the relationship between the child and his sibling to be developed. It was distinctly noticeable in this case however that there was no evidence from the father’s new partner and I do not even know the details of the baby’s name.
The father submitted that he would be prepared to medicate the child in his time but he remarked that it was only one issue in the scheme of things. He said his primary concern was that the child was being neglected and abused by the mother. Having regard to the findings I have made above, I cannot see how that submission could be seriously put by the father.

The father’s concern about any order other than equal shared parental responsibility was that he would be cut out of making decisions about the child’s welfare. He fails to see that there is no prospect of such a consultation process working at the moment.
In what I described earlier as an emotive speech, the father said that he had done a great job with a limited about of time that he had had with the child and the issues that he had to deal with. He referred to the fact albeit not in evidence, that he had inquired about a tutor and that he even started up a scholarship fund for the child. He thought therefore that it was appropriate that I should make an order for “joint custody”.
The Independent Children’s Lawyer’s position was, like that of the mother, simple. He said that medication would not happen with the father and the Court could not rely upon the father. Counsel for the Independent Children’s Lawyer submitted that the Court could not be satisfied that the father understood the nature of the evidence of Dr D and with that submission, I agree.
It was the Independent Children’s Lawyer’s submission that the alternate weekends should remain including a return on the Monday morning. I reject that for the reasons earlier outlined.

An order for medication by the father

Section 65D of the Act provides that in proceedings for a parenting order, the Court may (subject to issues to which I shall later turn) make such parenting order as it thinks proper. The emphasis is on the word “proper”.
There is little doubt that the Court could make an order directing the father to medicate the child if there was a finding that it was in the child’s best interests for health and development reasons. However, I am acutely conscious that all parents have differing standards of parenting from the eccentric through to the inconsistent to the barely adequate. Children experience what they will in the various households according to their parents’ subjective judgments. In circumstances where parents raise children without consulting each other as to standards, the only issue for the Court is whether or not there is an adverse impact on the welfare, development or care of a child. The Court cannot delve into every conceivable issue nor should it. The whole philosophy of the 2006 amendments to the Family Law Act turned on the question of parental responsibility. Differing standards of parenting are all part of the rich tapestry of a child’s life. In Aldridge and Keaton [2009] FamCAFC 229 at paragraph 75, the Full Court referred to the paramountcy principle being the relevant consideration but not the sole one. Just what is proper is very much a value laden concept. The values must to a very large degree, be sourced for the decision-maker from the way in which the respective parents are going to raise their child. The Court must have regard to all of the circumstances and the competing arguments to determine whether the standards have an adverse impact upon a child and it is only at that point, the Court should intervene. The Court should take into account whether the parents are listening to the professional advice particularly in relation to health and education. Propriety is therefore a very subjective approach.
As Kirby J said in AMS v AIF (1999) 199 CLR 160, parents enjoy as much freedom as is compatible with their obligations with regard to their child. It is not appropriate in my view for a court to force a parent to medicate a child where there are strong philosophical reasons advanced by the parent to the effect that it should not happen. In this case, the evidence supports the conclusion that there is no adverse effect on the child by not being medicated but rather that he would thrive and do much better if he was. If the father cannot see that, my view is that the child will ultimately be disadvantaged in his father’s care but those problems will be rectified during the mother’s time. In my view therefore, it is not proper for the Court to make an order that a child be medicated under these circumstances. However, because of the evidence of Dr D, I have much more confidence in the mother to continue the routine that has been so successful for the child and one which would otherwise be disturbed if he continues to be returned to the mother or to the school on the Monday morning or the first day of a school term. The sensible solution in my view is for the child to be returned to his mother at 7.00pm on a Sunday night so that he can settle for the night and be medicated on the morning in the appropriate way. A similar approach is necessary in relation to the ending of the school holiday period.
Section 60B of the Act was drawn to my attention by the father in his final address. The objects and principles of the Act are clearly set out. Overriding considerations however affect those objects and principles. The overriding consideration is always the best interests of the child. To the extent that the father continues to deal with the child in a parallel rather than cooperative way with the mother, the child is not attaining his entitlements as set out in s 60B.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration. To determine what is in those best interests, the Court must consider the matters set out in s 60CC. Before contemplating those matters, the Court has to deal with the question of parental responsibility.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for him. That presumption however is rebutted if the Court is satisfied on reasonable grounds that a parent has engaged in abuse of the child or family violence. The evidence is unsatisfactory but in my view, I could not make that finding in this case. However, the presumption may be rebutted in s 61DA(4) by evidence that satisfies the Court that it would not be in the best interests of the child for his parents to have that equal shared parental responsibility.
Section 65DAC provides that if an order is made by the Court for equal shared parental responsibility as it was in 2010, the exercise of that parental responsibility involves making a decision about major long term issues concerning the child. The provision means that the order is taken to require that decision or those decisions be made jointly by those persons. It is taken to require each of the persons to consult with the other about the decision and make a genuine effort to come to a joint decision about the issue. The evidence in this case is clear. That will never happen. Although the mother has clearly contributed to that dilemma, I accept that the major responsibility for the breakdown in communication lies with the father in his refusal to accept the mother’s role as the child’s primary carer and his unilateral style in ignoring her difficulties.
Having regard to the provisions of s 61DA(4), I find that there is no prospect that it could be in the child’s best interests that his parents have equal shared parental responsibility. The presumption is accordingly rebutted.
In relation to the best interests principles generally, s 60CC sets out how they are to be determined. That section divides the considerations into primary and additional ones.
There is no doubt in my mind that the child currently has a meaningful relationship with both parents. Both parents love him and he clearly is attached to both of them albeit that the mother is his primary attachment figure. He benefits from that relationship. The duration of the time with each parent is irrelevant in these circumstances. What the father packs into the limited time that he has with the child indicates that the child responds appropriately. However, there is no basis for me to extend that time having regard to the evidence set out above and the findings I have made.
Section 60CC also requires the Court to consider ways in which the child can be protected from being exposed to the psychological harm of abuse, neglect or family violence. I am not at all satisfied that I understand just what abuse the child has witnessed but I have little doubt that he is in the midst of a conflictual relationship and knows no difference. That evidence is abundantly clear from Dr D.
The additional considerations include his views. The father was at pains to point out that he is doing what is best for the child and what the child wants. In my view, there is no evidence that would satisfy me that I should give any weight to the child’s views having regard to his age and level of maturity.
I have already set out the nature of the relationship between the child and each of his parents and other persons who are involved in his life. As I pointed out, I do not know what sort of a relationship he has with his step-mother and sibling as well as step-siblings because the father did not provide any significant evidence in relation to that. What I do know however is that he is highly dependent upon his mother who has undertaken all of the assessments to which I earlier referred. He is therefore much more attached to his mother than his father.
The father was strongly critical (as I have indicated) of the mother’s failure to facilitate the relationship with him. I reject that. The mother has gone out of her way to ensure that there is an ongoing relationship with the child and the father. I have no doubt from her evidence that she will continue to be positive about that relationship because it is in the child’s best interests. I am not convinced at all that the father adopts a similar view.
Having regard to the nature of the relationship between the mother and the child, a week about arrangement as proposed by the father would no doubt have a significant impact upon the attachment that the child has to his mother. I do not know what that impact would be because neither party led any evidence about it other than the fact that Dr D indicated that conflict was not good for the child.
Both parents show a capacity to care for the child and I have no concerns about their respective abilities to provide for the emotional and intellectual needs of the child.
The attitude to the child and to the responsibilities of parenthood demonstrated by the parties leave me perplexed. I have no hesitation in finding that the mother has been a very child-focussed parent as is evident from all of the assessments she has undertaken and the advice that she has followed from the professionals. She attends the school and is very much involved in making sure that the child is settled and doing well. The father has maintained that the mother is at fault for not telling him about all of these things but he has done little to pursue the professional advice and when he has heard it, he has not been listening. His approach to Ms C of waving around the court order showed that he was more interested in his desires than listening to her concerns about the child. In my view, the mother is a much more child-focussed parent.
I make no findings in relation to family violence or family violence orders.
This is a case in which the child needs now to settle into a routine and in my view, it would be preferable in this case to make a very simple order where much will depend upon the mother keeping the father informed of the decisions she makes. I do not propose to be prescriptive about that but it makes sense for the child to have a very settled time with his father and for him to understand what is going on in the child’s life because otherwise the child will become confused when he returns from not only alternate weekends and various week nights but also school holidays. To the extent that the father wishes to medicate the child, that is a matter that he can sort out with the mother and if he does not do so, the mother will no doubt be conscious of that when the child returns. This is a case where the child needs the respect he deserves and I propose to make orders that will finalise the matters until such time as the parents can work out things themselves as the child grows accordingly. In my view, the orders proposed by the mother therefore as to time are very sensible. I reject the alternate week arrangement including the arrangement for the return on the Monday morning. I think it is important that the child settle back into his mother’s care prior to returning from school and I propose to make orders in those terms.
The other provisions in s 60CC of the Act require the Court to consider how in fact the parties have dealt with each other and I have made sufficient findings as above to indicate my views about how there has been a complete breakdown in the communication.
Accordingly, the orders set out at the start of these reasons are in the child’s best interests.

I certify that the preceding One Hundred and Thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 August 2013.

Associate:

Date: 28 August 2013

[2013] FamCA 742

28 August 2013

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