Kelly & Leigh

This matter concerned an application by the father for parenting orders regarding the parties' five-year-old child. The father sought orders for the child to live with the mother from after school on Thursdays until Monday mornings, totalling four nights per fortnight. The parties had previously agreed to a "live with/live with" arrangement, where the child spent alternate weekends with each parent, from Friday to Monday. The sole dispute before the court was whether the child should spend an additional night per fortnight with the mother, distinguishing between "equal time" and "substantial and significant time" as defined by the *Family Law Act*.

The court was required to determine the child's living arrangements, specifically whether the child should reside with the mother for an additional night per fortnight, in addition to the existing alternate weekend arrangements. This determination was to be made in accordance with the best interests of the child, considering the factors outlined in section 60CC of the *Family Law Act*. The court also needed to assess the practicalities of travel and the capacity of each parent to meet the child's needs, particularly in light of the ongoing conflict between the parties.

Benjamin J considered the evidence presented, including the parents' respective capacities, the child's age and schooling, and the practical difficulties and expenses associated with travel between the parents' residences. The court noted that both parents expressed a desire for the child to have time with the other parent, but found this rhetoric was not matched by reality, with both parents appearing focused on their own relationship with the child. The court found that while both parents could meet the child's emotional and intellectual needs, the continuing conflict was a significant issue. The court also considered the impact of any changes on the child and the practical difficulties of travel, noting that neither parent currently held a driver's licence and relied on others for transport.

The court ordered that the child live with the mother from after school on Thursdays until the commencement of school on Wednesdays, each alternate week during school terms for 2007 and 2008. From the 2009 school year onwards, the order stipulated that the child live with the mother from after school on Fridays until the commencement of school on Fridays.